N.L.R.B. v. Dorothy Shamrock Coal Co.

• Decision Date: 25 November 1987
• Docket Number: No. 86-2862,86-2862
• Citation: 833 F.2d 1263
• Parties: 126 L.R.R.M. (BNA) 3313, 107 Lab.Cas. P 10,207 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOROTHY SHAMROCK COAL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1263

833 F.2d 1263

126 L.R.R.M. (BNA) 3313, 107 Lab.Cas. P 10,207

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOROTHY SHAMROCK COAL COMPANY, Respondent.

No. 86-2862.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1987.

Decided Nov. 25, 1987.

Fred Cornnell, NLRB, Washington, D.C., for petitioner.

David L. Swider, Sommer & Barnard, Indianapolis, Ind., for respondent.

Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

BAUER, Chief Judge.

Dorothy Shamrock Coal Company (the "Company") sells and distributes coal in Indianapolis, Indiana. The Company challenges the National Labor Relations Board's (NLRB) findings that it violated sections 8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. Sec. 151, et seq., by discouraging efforts to unionize its truck drivers and subsequently terminating all of its drivers following an unsuccessful union election.

The Company employs all nonunion drivers to operate its trucks. In 1981, however, Local 716 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the "Union") initiated efforts to organize the truck drivers. Approximately seven weeks after a representation election, that the Union lost, the Company's president and owner, Frank Carr, ordered the termination of all employee drivers, replacing them with independent truckers and trucking firms. Subsequently, the discharged employees filed a charge with the NLRB alleging that the terminations were taken in retaliation for unionization efforts. Administrative Law Judge John West found that the Company "threatened its employees with closure or elimination of their jobs and informed an employee that it would be futile to select a union to represent employees" thereby engaging in unfair labor practices in violation of section 8(a)(1) of the Act. The ALJ also determined that the Company violated section 8(a)(3) by terminating its employees in retaliation for unionization efforts. Finally, the ALJ held that the Company violated sections 8(a)(1) and (4) of the Act by "informing its employees that it would not discuss reinstitution of its operations or any other matters because a charge had been filed with the Board, and by failing and refusing to recall or reinstate its employees...." A three member panel of the NLRB affirmed the ALJ's rulings that the Company violated sections 8(a)(1) and (3), but reversed the finding of a section 8(a)(4) violation. We hereby enforce the judgment of the NLRB.

I.

This action presents a close case of factual inferences and credibility determinations while raising few if any legal issues. The Board argues that statements made by Company supervisors evidence antiunion animus and its retaliatory intent in discharging its employees. The Company proffers innocent explanations for the allegedly discriminatory comments and argues that economic pressures necessitated its actions. Our task is to determine if the judgment of the NLRB is supported by substantial evidence on the record as whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); see, e.g., Kankakee-Iroquois County Employers' Ass'n. v. N.L.R.B., 825 F.2d 1091, 1094 (7th Cir.1987); N.L.R.B. v. American Printers and Lithographers, 820 F.2d 878, 884 (7th Cir.1987). We must defer to the expertise of the Board and will not displace its reasonable inferences even where a plenary review of the record might yield a different result. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962). Moreover, we "must accept the Board's credibility findings unless the party challenging [those determinations] establishes [that] 'exceptional circumstances' " justify a different result. NLRB v. Del Rey Tortilleria, Inc., 787 F.2d 1118 (7th Cir.1986) (quoting NLRB v. Harrison Steel Castings Co., 728 F.2d 831, 836 n. 9 (7th Cir.1984)); NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982).

II.

The Board found that statements made by Ben Henry, division manager of the Company, and William Scruggs, its truck supervisor and dispatcher, violated section 8(a)(1) of the Act. ¹ In late February or early March, 1982, a Company truck driver, Jack Wilson, asked William Scruggs for time off since Wilson was "out of hours," a colloquialism for working more than the usual number of hours. Scruggs responded: "Sounds to me like you're trying to run this like a union shop." Henry, who also was present during this exchange, added that "we're not union, we never have been, and never will be." Before driving for Shamrock, Wilson worked as a union driver for another company, a fact well known both to Scruggs and Henry. ² Subsequently Wilson contacted the Teamsters Union in an attempt to organize the Company's drivers.

The Company argues that the statements made to Wilson reflect only the managers' opinions and cannot be characterized as threats against unionization. ³ The tenor and circumstances of the remarks, however, do not support such a contention. Unlike many of the cases cited by the Company, Henry's clear and unequivocal statement to Wilson that "we're not union, we have never been and never will be" was definitely not a "casual" comment made within the free flow of conversation between workers and supervisors. See, e.g., Gossen Co. v. NLRB, 719 F.2d 1354 (7th Cir.1983). That uncompromising retort met Wilson when he inquired about taking some time off because he worked overtime and was accused of "trying to run this like a union shop." Nor was this the isolated sentiment of a single supervisor couched in terms of personal opinion. Both Scruggs and Henry were in clear agreement that the Company would never tolerate union organization. Moreover, Henry made the identical remark nine months earlier during Wilson's job interview. ⁴ These comments were a calculated attempt to discourage employee organization and thus violated section 8(a)(1) of the Act. See Fred Lewis Carpets, Inc., 260 NLRB 843, 846-49 (1982) (employer unlawfully told employees that he was not "going to go union"); but cf. NLRB v. Larry Faul Oldsmobile Co., 316 F.2d 595 (7th Cir.1963) (statement that employer "might as well throw business up for grabbs" after successful union election was not a threat, but merely an expression of exasperation).

Following his encounter with Henry and Scruggs, Wilson became dissatisfied with his working conditions and discussed unionization with other drivers. Wilson contacted the Teamsters Union in April, 1982, which eventually filed an election petition with the NLRB following a successful authorization-card drive. On June 11, the Union lost an NLRB election by a 5-2 margin. The NLRB certified the election results on June 21, 1982. On July 30, 1982, the Company's President, Frank Carr, released a communique to the drivers announcing their immediate termination. The drivers were told that the decision was motivated by their failure to properly complete new driver forms instituted to reduce expenses. The drivers were assembled again on August 2 and read another letter prepared by Carr. This letter attributed Carr's decision to the drivers' failure to follow instructions, a thirty-four percent increase in insurance rates, and a "consistency [sic] of mechanical and other increases." The ALJ found that the General Counsel established a prima facie case that the Company's decision was in retaliation for its employees' recent pro-union activities, and rejected the Company's economic justifications for the terminations as unsupported by the record. The NLRB adopted the ALJ's recommended order which we now enforce.

III.

The General Counsel carries the burden of proving the elements of a section 8 unfair labor practice. See 29 CFR Sec. 101.10(b) (1982). Thus, the Counsel must establish that the discharge or other adverse labor practice was "based in whole or in part on antiunion animus--or ... that the employee's protected conduct was a substantial or motivating factor in the [employer's] adverse action." NLRB v. Transportation Management Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667 (1983). The employer, however, may avoid liability by showing that his actions would have been the same "regardless of his forbidden motive." Wright Line, 251 N.L.R.B. 1083 (1980), enf'd., 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982).

The Company contends that the General Counsel failed to establish a prima facie case of a section 8(a)(3) violation because there is no direct evidence that Frank Carr harbored antiunion animus and no evidence linking Carr with the statements of Scruggs and Henry. The Company also argues that even if such a prima facie case could be made, the record contains substantial evidence of business justification for the terminations, contrary to the ALJ's determination. We deal with each of these arguments in turn.

The Board relied upon a variety of factors in determining that Shamrock was motivated by a retaliatory antiunion animus in terminating its truck drivers. We believe that determination is supported by substantial evidence in the record. The Company, through two of its supervisory personnel, articulated, on several occasions, its strong antiunion stance and its commitment to retain a nonunion workforce. The Company contends that these statements cannot be attributed to Carr and therefore are not indicative of an antiunion motive in his decision to terminate the drivers. The Board, however, is "free to rely on circumstantial as well as direct evidence" in assessing motive. NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 626 (7th Cir.1981), see also NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1352-54 (7th Cir.1984) (where the president of a small company made the layoff decision, but had made no unlawful...