N.L.R.B. v. P*I*E Nationwide, Inc.

• Citation: 923 F.2d 506,136 L.R.R.M. (BNA) 2278
• Decision Date: 17 January 1991
• Docket Number: Nos. 89-2585,90-1265 and 90-1579,s. 89-2585
• Parties: Page 506 923 F.2d 506 136 L.R.R.M. (BNA) 2278, 117 Lab.Cas. P 10,490, Bankr. L. Rep. P 73,797 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. P*I*E NATIONWIDE, INC., Respondent. P*I*E NATIONWIDE, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. United States Court of Appeals, Seventh Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 506

923 F.2d 506

136 L.R.R.M. (BNA) 2278, 117 Lab.Cas. P 10,490,

Bankr. L. Rep. P 73,797

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. P*I*E NATIONWIDE, INC., Respondent.

P*I*E NATIONWIDE, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 89-2585, 90-1265 and 90-1579.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1990.

Decided Jan. 17, 1991.

Richard A. Cohen, N.L.R.B., Aileen A. Armstrong, John D. Burgoyne, Julie Tigges, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Joyce Ann Seiser, N.L.R.B., Jeffrey R. Myer, Decarvalho & Myer, Milwaukee, Wis., Joseph A. Szabo, Director, for N.L.R.B.

Daniel M. Leep, Mulcahy & Wherry, Milwaukee, Wis., Peter R. Corbin, James R. Dickinson, Corbin, Dickinson & Duvall, Jacksonville, Fla., for P*I*E Nationwide, Inc.

Before WOOD, Jr., and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

This application, petition, and cross-application represent the latest chapter in the relationship between Patrick Clement and P*I*E Nationwide ("P*I*E"). It is an association that has given rise, over a seven-year period, to two discharges, no less than three administrative hearings before the National Labor Relations Board ("Board"), and a similar number of enforcement proceedings before this court. It has also produced a series of legal skirmishes in which P*I*E has rarely prevailed, and the present actions are no exception.

I.

P*I*E first hired Clement in September 1983 to work as an extra board driver ¹ at its Franklin, Wisconsin, terminal. His first discharge from P*I*E occurred on October 19, 1983--only one day after Clement had completed his one-month probationary period. It was motivated, in large part, by P*I*E's knowledge of and animus toward the fact that the Board had filed prior unfair labor practice proceedings on Clement's behalf, a motivation that was later found by the Board to constitute a violation of section 8(a)(4) of the National Labor Relations Act ("Act"), 29 U.S.C. Sec. 158(a)(4). P*I*E Nationwide, Inc., 282 N.L.R.B. 1060 (1987), enf'd, NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 890-91 (7th Cir.1990).

Clement spent most of the next four years searching for a job. He did manage to find some interim employment, but he was unable to hold a position for more than a few months. In particular, he was discharged by Aurora Fast Freight ("Aurora") after only three and one-half months. Subsequent to that termination he received a letter, signed by Aurora's president, which provided in relevant part:

On July 10, 1985, you were instructed to return to Milwaukee with tractor Number 3. You refused to take that tractor and proceeded to take a tractor that you knew had mechanical problems. On the trip back to Milwaukee you broke down for five hours. If you had returned with the tractor you were instructed to take we would not have had the cost of the breakdown as well as the delay of the freight.

We cannot afford to have people not doing what they are instructed to do. You are hereby discharged effective July 11, 1985.

In the meantime, P*I*E negotiated a settlement with the Board. In exchange for the Board withdrawing its application for enforcement, P*I*E agreed to post the Board's notice and, on July 8, 1987, reinstated Clement to his former position. The Board and P*I*E also entered into a stipulation whereby P*I*E reserved its right to a hearing to determine the amount of Clement's back pay.

Clement returned to P*I*E's employ only a few months before the company transferred its break bulk facility ² from Danville, Illinois, to Chicago, Illinois. This change of operations heralded a substantial increase in the number of trips between the Franklin terminal and the Chicago break bulk facility. Moreover, the change of operations allowed the Franklin terminal to send its drivers on up to three trips per shift without violating Department of Transportation ("DOT") safety regulations. ³

The distance between Franklin and Chicago was short (sixty-nine miles) and the drive was often arduous (traffic jams were quite common, and the trip normally took at least one hour and forty-five minutes). Extra board drivers, on the other hand, were paid by the mile, not the hour; they preferred longer trips with minimal traffic. Thus, it is not surprising that even a single Franklin-Chicago assignment was viewed with a lack of enthusiasm, and the possibility of three trips per shift was viewed with outright disdain.

As complaints increased and tempers flared, union representative Frank Busalacchi had a telephone conversation with Michael Crowley, P*I*E's labor relations representative. Busalacchi confronted Crowley with the complaints concerning third trips to Chicago. In response to Crowley's adamant insistence that extra board drivers had to make the trips because P*I*E had to move the freight, Busalacchi argued, "[I]f the guys are fatigued, they just ain't going to go." Crowley answered, "I don't have a problem with that," ⁴ and also stated that the dispatcher, in his discretion, could assign the run to another available driver rather than saddle an employee with a third trip to Chicago.

The Busalacchi-Crowley conversation underwent a transformation as its content was relayed; the drivers came to understand the oral agreement in a manner quite different than Busalacchi. They interpreted the agreement to mean that third trips to Chicago were in the driver's discretion, and that they could reject such dispatches with impunity. Indeed, some of the drivers, including Clement, rejected third trips in the upcoming months and did not always give a reason for the decision. P*I*E, however, took no action against these drivers.

P*I*E did pursue its right to dispute the Board's calculation of Clement's back pay. At a hearing on April 21, 1988, P*I*E argued that Clement's discharge from Aurora constituted a "willful loss of earnings" that would reduce the total amount of back pay sought by the Board. See Mastro Plastics Corp., 136 N.L.R.B. 1342, 1346 (1962), enf'd, 354 F.2d 170 (2d Cir.1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). The administrative law judge ("ALJ"), relying in large part on the discharge letter from Aurora, later agreed with P*I*E and reduced Clement's back pay award from $102,117.46 to $77,959.72 in a decision announced on September 30, 1988.

The other drivers at the Franklin terminal were well aware of Clement's back pay hearing, and a significant number discussed the proceeding with him. In particular, they discussed the testimony of Larry Scarbrough, P*I*E's line transportation manager. Clement told his coworkers that Scarbrough had failed to produce subpoenaed documents and had answered questions about that failure by stating "I don't know." For whatever reason, Scarbrough's performance at the hearing became the subject of widespread derision among the drivers, who began to answer his questions by stating "I don't know" in a manner that mocked Scarbrough's slight southern accent.

The underlying tensions created by the taunting and the drivers' interpretation of the Busalacchi-Crowley oral agreement came to a head on July 18, 1988. As Clement was completing his paperwork for a shift in which he had already completed two Franklin-Chicago runs, Scarbrough assigned him a third trip to Chicago. Clement, in rejecting the assignment, exhorted: "Larry, you know that we are only required to do two trips. A third trip is up to the driver if he wants to do it or not. I have done my two for the day and I am going home." After Clement continued to refuse the assignment, Scarbrough issued two warnings in rapid succession and fired him.

After a hearing on September 1 and 2, 1988, the ALJ essentially found that the testimony of Clement and his coworkers was credible whereas the testimony of P*I*E's witnesses was incredible. She concluded that Clement's discharge violated sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1), (3), because Clement had been discharged for reasonably and in good faith invoking a right rooted in a collective bargaining agreement. She also noted that Scarbrough "felt uncomfortable if not humiliated" by his role in Clement's back pay hearing and that the widespread taunting fueled Scarbrough's animosity toward Clement. Based on these two observations, she concluded that the antiunion animus that caused P*I*E to violate section 8(a)(4) when it discharged Clement in 1983 had not subsided when Scarbrough discharged Clement in 1988. She also rejected P*I*E's defense that Scarbrough would have fired Clement regardless of any unlawful motivation.

The Board modified this conclusion, but only slightly. In finding an unlawful motive for purposes of section 8(a)(4), the Board disclaimed reliance on Scarbrough's testimony at the back pay hearing (the testimony that had made him "uncomfortable if not humiliated"). The Board did rely, however, on the drivers' taunting of Scarbrough. This piece of evidence, the Board concluded, established a prima facie case of P*I*E's continued motivation to retaliate against Clement for his use of the Board's remedial processes. The Board filed an application for enforcement on July 27, 1989, and P*I*E thereafter submitted arguments in opposition.

The Board also negated P*I*E's earlier victory in Clement's back pay hearing. After viewing the evidence, the Board assigned less weight to the Aurora discharge letter and concluded that P*I*E had not established a "willful loss of earnings." P*I*E filed a petition for review under 29 U.S.C. Sec. 160(f) on January 31, 1990, and the Board filed a cross-application for enforcement on March 13, 1990. After filing, the petition, cross-application, and application were consolidated for oral argument.

After oral argument, P*I*E changed its name to Olympia Holding Corporation and filed for Chapter...