N.L.R.B. v. Brookshire Grocery Co.

• Decision Date: 22 February 1988
• Docket Number: No. 87-4258,87-4258
• Citation: 837 F.2d 1336
• Parties: 127 L.R.R.M. (BNA) 2776, 108 Lab.Cas. P 10,325 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKSHIRE GROCERY CO., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1336

837 F.2d 1336

127 L.R.R.M. (BNA) 2776, 108 Lab.Cas. P 10,325

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKSHIRE GROCERY CO., Respondent.

No. 87-4258.

United States Court of Appeals Fifth Circuit.

Feb. 22, 1988.

Barbara A. Atkin, Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Beverly A. Oyama, Washington, D.C., for petitioner.

Brynely James, III, David L. Treat, San Antonio, Tex., Wendell Hall, Robert S. Bambace, Fulbright & Jaworski, Houston, Tex., for respondent.

Michael Dunn, Director, Fort Worth, Tex., for other interested parties.

Application for Enforcement of an Order of the National Labor Relations Board (NLRB 16-CA-12370).

Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal requires us to examine whether substantial evidence supports the National Labor Relations Board ("Board") decision that Brookshire Grocery Company ("Brookshire") violated Section 8(a)(1) and (3) of the National Labor Relations Act ("Act") when it discharged its employee Homer Evans for allegedly falsifying a short term medical disability form. Upon review of the record as a whole, we conclude that substantial evidence will not support a conclusion that the company was motivated by union animus in the discharge of Evans. We therefore deny enforcement.

I

Because the sole issue in this case is whether substantial evidence supports the Board decision, we deal at length with the factual history. In examining the facts, we accept the Administrative Law Judge's account of the events from the time of Evans' first union activity until his discharge.

Brookshire operates a chain of retail grocery stores in Texas, Louisiana, and Arkansas. Homer Evans worked as a truck driver for Brookshire from 1979 until his discharge in October of 1985. On April 13, Evans attended a union meeting and signed a union card. As far as the record indicates, this constitutes Evans' sole union activity. On May 31, Evans reported to work and was told by Brookshire's dispatcher that his usual truck was unavailable and he would have to drive a different one. After Evans surveyed the age and general condition of the truck he was to drive, he complained to the dispatcher about the reassignment. On June 4, Evans was called to the office of the company transportation supervisor, David Hollis, who, apparently did not like the complaints and other reactions of Evans over his reassignment. Evans, apparently sensing that some trouble might be brewing, asked fellow truck driver, David Nelson, to accompany him to the meeting. Nelson's presence did not set well with Hollis who asked him to leave. Evans interjected, however, that he wanted Nelson to remain in order to witness that he was informing Hollis that he was involved in the union activities that were occurring at the facility. Once this statement was made and Nelson made his departure, Hollis brought up Evans' complaints about his assigned truck. He concluded by permanently assigning Evans a particular truck, which was one of the oldest in the operating fleet.

After his discussion with Evans, Hollis was still stewing over the brief encounter with Nelson. He sought him out and told him that he would not be driving any more, but would have to work in Brookshire's return center. In about four hours, Hollis apparently cooled off, because he rescinded Nelson's reassignment.

In the meantime, Hollis did not rescind Evans' assignment to the truck, which he drove the night of June 4 on his regular route. As a result, Evans experienced back pain that prompted him on the next day to visit his chiropractor, Dr. Bratcher, who recommended that Evans take some time off to improve his back condition.

Evans also complained to the company that the truck was riding roughly, causing him back pain and discomfort. The company promptly replaced the old seat in the truck with a new one on the day after he made the complaint.

Although Evans briefly returned to work, his back problems persisted, and he was away from his job for about one month. He consequently began drawing short-term disability benefits through the company's program while also filing a worker's compensation claim. On June 28, at the company's request, Evans saw Dr. Collins, a neurologist, who recommended that Evans attend "back school" to learn techniques for caring for his back. At about the same time, Evans and his chiropractor decided that Evans' condition had improved sufficiently to allow him to return to work, which he did on July 8. Evans advised the company that although Dr. Collins had recommended that he attend back school, he wished to postpone the school because it would take two or three weeks.

From the time of his return in July until October, Evans' story is uneventful except for one incident. In August, several truck drivers were talking about an accident involving one of the drivers. When Hollis overheard the conversation, he commented that it was too bad that it had not happened to Evans.

In early October Evans' back problems recurred. On October 10, he visited his chiropractor who again recommended that Evans take time off from work to rest his back. He also thought it a good idea for Evans to attend the back school. On October 11, Evans advised the company that he required time off to rest his back and to attend back school. As apparently was customary, Evans was required to submit a short-term disability form in order to obtain benefits during his absence.

The stage is thus set for Evans' discharge, which the company based upon its belief that Evans had falsified this form in order to obtain benefits. Under the company plan an employee was required to see a doctor in order to claim payment for medical absences. The alleged falsity arose from the answer to the question: "When were you personally examined by your doctor?" Evans answered by writing the date: "October 10, 1985." Indeed, this was the most recent date that Evans had seen his chiropractor, Dr. Bratcher. The other side of the form, however, provided questions for "Examining Physician's Statement." These questions were, at Evans' request, completed by Dr. Collins' staff and signed by Dr. Collins on October 14, 1985, whom Evans in fact had not personally seen since June 28. Evans stated that he had Dr. Collins and his office complete side two of the form at the suggestion of his chiropractor since it was Collins who had originally advised attending the back school. The second page of the form, also filled out by Dr. Collins' staff, erroneously stated that Evans had been continuously disabled from June 28, the last time Dr. Collins had seen him, until October 14, 1985.

Evans then completed back school in one day, on October 15, but remained away from work for the remainder of the week.

Later, a company personnel clerk was processing Evans' form for payment and noticed that on page one he stated that he had seen his doctor on October 10, but on page two the doctor stated that he had not seen Evans since June 28. The clerk called Dr. Collins' office to clarify when the last time Evans had seen Dr. Collins. During the conversation, the personnel clerk told someone in Collins' office, "Well, we have had a lot of trouble with this man and ... he has been involved in a lawsuit."

After her conversation with the doctor's office, the personnel clerk informed Greg Nordyke, the Transportation Manager, of the discrepancy in Evans' form. Nordyke then personally visited Collins' office and was told by Collins that he had not examined Evans on October 10. Collins also told Nordyke that it was not necessary to miss more than one day of work for the back school. Nordyke also personally called the back school and confirmed that Evans had participated in the school's program for only one day.

After completing his investigation, Nordyke then discussed the situation with Adams, Brookshire's Operations Director, and they concluded that Evans had violated the company's policy manual by falsifying company documents, i.e., the short-term disability form. It is undisputed that under the terms of the policy manual, falsification of company documents is grounds for dismissal. It is also undisputed that the alleged misrepresentation was material since it was necessary to see a doctor in order to claim disability benefits.

On October 21, Evans was fired by Adams and Nordyke for falsifying company documents by stating that he had seen his doctor on October 10 when in fact he had not. Evans protested that he had in fact seen "my doctor" on October 10. However, he did not name which doctor he had seen. He then looked at Adams and asked "But you don't care about that, do you?" Adams replied, "No."

After Evans had filed an unfair labor practice charge and the Board investigation had begun, Nordyke called Evans' chiropractor, Dr. Bratcher, and verified the Board's allegation made to him that Bratcher had seen Evans on October 10. Nordyke, however, did not rescind his decision to discharge Evans.

II

The Board, in a split decision, agreed with the Administrative Law Judge that "a prima facie showing has been made that Evans' discharge was in violation of the Act and the Respondent did not adequately rebut this case." It reasoned that a prima facie case was evidenced by the "ongoing hostility" of Hollis toward Evans. When Hollis determined in the June 4 conference that Evans was pro-union,...