N.L.R.B. v. Advance Transp. Co., 91-1103

• Decision Date: 10 November 1992
• Docket Number: No. 91-1103,91-1103
• Citation: 979 F.2d 569
• Parties: 141 L.R.R.M. (BNA) 2824, 123 Lab.Cas. P 10,460 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE TRANSPORTATION COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 569

979 F.2d 569

141 L.R.R.M. (BNA) 2824, 123 Lab.Cas. P 10,460

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE TRANSPORTATION COMPANY, Respondent.

No. 91-1103.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1991.

Decided Nov. 10, 1992.

Judith A. Dowd, John Fawley (argued), N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Aileen A. Armstrong, N.L.R.B., Appellate Court, Enforcement Litigation, Paul J. Spielberg, N.L.R.B., Litigation Branch, Washington, D.C., for plaintiff N.L.R.B.

Leonard R. Kofkin, Fagel & Haber, Chicago, Ill., for respondent Advance Transp. Co.

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

GRANT, Senior District Judge.

I. INTRODUCTION

Section 8(a) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a), makes it unlawful for an employer to discharge an employee because of his participation in protected union activities. In the present case, the Administrative Law Judge (ALJ) found that Advance Transportation Company, an interstate and local trucking company, violated sections 8(a)(1), (3) and (4) of the Act, 29 U.S.C. § 158(a)(1), (3) and (4), when it terminated truck driver Harry Bidwell, and ordered, among other things, that Advance offer Bidwell reinstatement. The National Labor Relations Board (the "Board" or "NLRB") affirmed the ALJ's findings and conclusions and adopted the recommended order. It now seeks enforcement of that order.

II. BACKGROUND

This is not the first time Advance Transportation has been found in violation of the Act. In the latter half of 1988, Advance terminated two other truck drivers, Daniel Tuffs and Donovan Bauldry, for allegedly violating its "three strike" disciplinary policy. ¹ Both Tuffs and Bauldry filed complaints against Advance with the NLRB contending that their termination was in violation of the Act, more specifically that they were terminated for openly opposing a compulsory profit-sharing plan proposed by the company and for associating with other union members who opposed the plan. The Board found that antiunion animus was indeed a motivating factor in the termination of Tuffs and Bauldry in violation of 29 U.S.C. § 158(a)(1) and (3), and that Advance failed to show that it would have fired them absent the discriminatory motive. As part of its remedy, the Board ordered Advance to offer both drivers reinstatement. We granted enforcement of that order in NLRB v. Advance Transportation Co., 965 F.2d 186 (7th Cir.1992).

The facts surrounding Bidwell's termination are inextricably intertwined with those in Tuffs' and Bauldry's case. Like Tuffs and Bauldry, Bidwell openly opposed the compulsory profit-sharing plan proposed and ultimately implemented by Advance. Indeed, Bidwell ran for union office on a platform which targeted the compulsory plan. When the Tuffs and Bauldry case was heard by the Board, Bidwell was subpoenaed as a witness on behalf of the grievants to testify at the hearing. It is his absence from work on the second day of that hearing which ultimately resulted in his own termination.

Bidwell testified that he was subpoenaed to appear before the Board on April 24, 1989 and that, pursuant to the company's call-in policy, he telephoned Advance Transportation that morning to advise the dispatch office that he would be absent. Bidwell indicated that he had spoken with John Harper on that morning and advised him that he had been subpoenaed by the Board, and that he had been informed that the hearing would probably last more than one day. According to Bidwell, Harper stated, "That sounds like personal business to me," and abruptly hung up. Harper, however, testified that Bidwell called in sick that morning, and made no mention of his potential absence on April 25.

Bidwell testified that he made several unsuccessful attempts to call Advance on the morning of April 25 to verify his presence at the hearing and to notify the company of his absence. On all but one occasion there was no answer in the dispatch office. When Bidwell finally did get through, he was put on hold by a man whose voice he did not recognize. After waiting several minutes, Bidwell hung up. He made no further attempt to contact the company that day. William Close, in charge of labor relations and personnel at Advance, testified that Bidwell was accordingly listed as a "no call, no show" on the absentee report for April 25.

That Bidwell was actually at the Board hearing on April 25 is undisputed, as were Tuffs, Bauldry, Richard Blake, the dispatch manager, and Thomas Horvath, the regional manager. Blake testified, however, that he neither saw Bidwell nor had any knowledge of his presence at the hearing on that day. He testified that when he returned to the dispatch office late Tuesday afternoon on April 25 after the hearing had been completed, he learned that Bidwell had been listed as a "no call, no show" for that day.

Shortly after arriving at the terminal on Wednesday morning, April 26, Blake instructed Bidwell to see William Close regarding his absence the previous day. When Close questioned Bidwell regarding his absence on April 24 and 25 and indicated that Bidwell had called in sick on the 24th, Bidwell stated that he had been at the Board hearing on both days, that he had called in on April 24 to advise the company of his whereabouts, and had attempted to call in on April 25 without success. At that point, Bidwell was excused and the union steward, George Leichd, was summoned. The meeting was subsequently reconvened in the office of the terminal manager, Thomas Harper, where Bidwell was advised that he was being suspended pending investigation for "failing to follow instructions."

The company's brief investigation was conducted by Close, who simply asked Blake and Horvath if they had seen Bidwell at the hearing on April 25. Although the record does not disclose what Horvath's response was, Blake stated that he had not seen Bidwell. Close also asked John Harper to verify the content of the note he took regarding Bidwell's call on April 24. To that end, Harper executed a verified statement prepared by the office manager, JoAnne Budnick, and dated April 26, 1989, which provided as follows:

On Monday, April 24, 1989, I received a call from Mr. Bidwell at approximately 6:00 am. He told me he would be off Monday because he was sick. He also told me to inform Rich Blake in dispatch that he would not be in Monday.

(Emphasis original). By 11:00 a.m., the investigation had been completed, and the decision to terminate Bidwell had been made. The official notice of termination dated April 26, 1989 stated:

LETTER OF DISCHARGE

Mr. Bidwell:

On April 24, 1989, you called in to the Terminal advising that you were sick and would not be at work. You made no reference to your illness being extended beyond that day. On April 25, 1989, you failed to show up for work or call in.

You have had previous warnings for failure to follow instructions. You were warned and suspended on October 21, 1988 for failure to follow instructions. On November 16, 1988, you were sent a warning letter for failure to follow instructions. On November 17, 1988, you were advised of a one day suspension for failure to follow instructions.

The above record indicates your lack of concern in following Company instructions and you leave us no alternative but to discharge you for the above offense, effective immediately. ²

Although the letter was signed by Thomas Harper as terminal manager, William Close actually made the decision to terminate Bidwell's employment.

Advance contends that the evidence does not support the Board's determination that it violated § 8(a) by discharging Bidwell. It contends that antiunion animus was not shown to be a motivating factor in Bidwell's termination; that Bidwell was fired in accordance with a well-established progressive disciplinary policy; and that he would have been terminated notwithstanding any purported animus toward the union.

III. STANDARD OF REVIEW

Although 29 U.S.C. § 160(e) provides for judicial review of the Board's decision, that review is limited. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (en banc ), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). The Board's factual findings, and its application of the law to particular facts, are conclusive and binding on this court if they are supported on the record as a whole by substantial evidence. 29 U.S.C. § 160(e); NLRB v. So-White Freight Lines, Inc., 969 F.2d 401, 405 (7th Cir.1992); U.S. Marine Corp., 944 F.2d at 1313-14; Indianapolis Power & Light Co. v. NLRB, 898 F.2d 524, 529 (7th Cir.1990). A reviewing court may not reweigh the evidence or "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

IV. ANALYSIS

The initial burden in proving a violation of § 8(a) falls on the Board's General Counsel, NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), who must prove by a preponderance of the evidence that the employer's action was motivated in some part by its desire to impede the employee's protected activities. NLRB v. Transportation Management Corp., 462 U.S. 393, 399, 103 S.Ct. 2469, 2473, 76 L.Ed.2d 667 (1983); Advance Transportation, 965 F.2d at 190-91. If the employer is unable to rebut the General Counsel's prima facie showing, it can avoid being adjudicated a violator of the Act only if it can prove by a preponderance of the evidence that its actions were based on unprotected conduct as well, and...