N.L.R.B. v. Adams Delivery Service, Inc.
| Decision Date | 10 July 1980 |
| Docket Number | No. 79-7050,79-7050 |
| Citation | 623 F.2d 96 |
| Parties | 104 L.R.R.M. (BNA) 3093, 89 Lab.Cas. P 12,143 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADAMS DELIVERY SERVICE, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan S. Levins, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., argued, Paula Gold, San Francisco, Cal., on brief, for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before ANDERSON, SCHROEDER and FARRIS, Circuit Judges.
The N.L.R.B. petitions for enforcement of its order requiring respondent Adams Delivery Service, Inc., to reinstate employee Dennis Wilson with back pay and no loss of seniority rights. We grant the Board's petition to enforce. The Board's order is reported at 237 N.L.R.B. No. 140.
Adams Delivery Service, Inc. (hereafter "Adams") is a California trucking firm which provides local delivery service for pharmaceutical products at three locations. At the time this case came before the Board, Adams employed approximately 25 drivers at its Oakland terminal, three drivers at Sacramento, and nine in the Los Angeles area. The present case arises out of an incident which occurred at the Sacramento facility.
The Board alleges that Adams committed an unfair labor practice when it discharged Sacramento driver Dennis Wilson on March 1, 1977, following Wilson's consultation with a union business representative regarding an overtime pay dispute. The circumstances of this case require that we develop Wilson's employment background with Adams in some detail.
Wilson came to work for Adams as a delivery truck driver on January 3, 1977. Wilson had previously worked in a similar capacity for West-Pac, another Sacramento trucking firm. Under the collective bargaining agreement then in force between Adams and Local No. 588 of the Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers of Alameda County, California, a Teamsters Union affiliate, Adams was required to pay time and a half for all hours worked in excess of an eight-hour day. When Wilson received his first pay check on January 14, however, he noticed that he had not been paid for claimed overtime hours. Wilson spoke with his immediate supervisor, Lewis Solitske, about the overtime compensation, and was told that Adams did not pay for overtime work.
Wilson continued to claim overtime hours on his time card, even after his initial conversation with Solitske. He also continued to press his claims verbally with Solitske. According to Wilson's testimony before the Administrative Law Judge (ALJ), Solitske approached him on Friday, February 25, and told him that he had received a telephone call from Adams vice-president Randolph Marnell, who had informed Solitske that Wilson should cease reporting more than 40 hours a week or the company would fire him. Solitske testified that he had not made a threat to fire Wilson, but had merely told him to stop claiming overtime or he could "go back to West-Pac." Even though the ALJ credited Solitske's version of the conversation, he nevertheless found that it properly could be construed as a "threat" to Wilson.
The overtime problem was not the only source of irritation between Wilson and his superiors during his tenure with Adams, however. Adams had received complaints from a Payless Drug Store in Sacramento regarding Wilson's behavior during attempted deliveries. A few weeks after his initial hire date, Wilson became involved in a profane shouting match with the Payless warehouse manager when the manager refused to allow Wilson to make a delivery after the posted loading dock closing time. The manager called Adams president Frank Blichfeldt, but declined to submit a complaint in writing. A second incident sometime in late February prompted a second phone call from the Payless manager in which he told Randolph Marnell that he did not want Wilson back. The manager reluctantly agreed to submit a complaint in writing this time.
Adams apparently had also discovered some alleged misrepresentations by Wilson regarding his driving record. A check with the Department of Motor Vehicles by Adams' liability insurance broker had revealed three moving violations and an accident within a thirty-seven month period. Though Adams claimed that it had been motivated in part by Wilson's poor driving record in discharging him on March 1, the ALJ chose to give this explanation little weight, mainly because the letter advising Adams of the violations was dated March 10.
The overtime controversy reached its climax on Monday, February 28. Wilson and Solitske apparently had another conversation that morning which, according to Wilson, contained yet another threat of termination unless Wilson stopped making overtime claims. Wilson replied that he would consult with the union's business representative. Late that afternoon, Wilson went to Local 588's union hall and met with business representative Frank Lomascola. After conferring with Wilson for a few minutes, Lomascola telephoned Randolph Marnell and spoke with him about the overtime problem. Lomascola informed Marnell that Wilson was in his office and had not been paid overtime as required by the collective bargaining agreement. According to Lomascola's testimony, Marnell replied, "Well, hell, if that's the case, we'll just fire him." Marnell testified that he did not threaten to fire Wilson during that conversation, describing Lomascola's version as a "direct lie." The ALJ did not credit Lomascola's account of the conversation completely, but did find that the conversation indicated sufficiently that Wilson was discharged mainly because of the overtime controversy.
The next morning when Wilson arrived for work, he was told by Solitske that he was being terminated because Marnell felt that he "was going to be a problem." In response to a subsequent union grievance, Marnell replied that Wilson had been terminated while still within his 90-day probationary period because of his "poor working attitude" and his "ill-tempered" reactions. Marnell's letter also cited Wilson's driving record and the insurance problems that it would create for Adams.
After a hearing on the matter, the ALJ found that, while Adams might have been justified in discharging Wilson because of the Payless Drug incidents, Wilson would not have been terminated "but for" his pressing of the overtime issue with the union. In his conclusions of law, the ALJ found that Solitske's comments on February 25 "interfered with, restrained and coerced" Adams' employees in violation of Section 8(a)(1) of the National Labor Relations Act, and that the act of discharging Wilson discriminated against him with respect to his hire and tenure of employment, and further interfered with, restrained, and coerced Adams' employees with respect to the exercise of statutorily guaranteed rights in violation of Section 8(a)(3) and (1). The ALJ ordered Adams inter alia to reinstate Wilson to his former position without prejudice to seniority rights, and to make him whole for any losses of pay. The Board adopted the ALJ's findings and order and now petitions this court for enforcement.
In considering the enforceability of the Board's order in this case, we must confront two issues:
(1) Whether the Board's findings are supported by "substantial evidence";
(2) Whether Adams' act of discharging Wilson constituted an unfair labor practice.
Under the standard of review so often reiterated by this and other federal courts, we enforce the Board's order if its findings are supported by substantial evidence on the record as a whole, and if the Board applied the law correctly. E. g., Butler-Johnson Corp. v. N.L.R.B., 608 F.2d 1303, 1305 (9th Cir. 1979). In reviewing the propriety of an employee discharge as an alleged violation of Section 8(a)(3), we inquire whether anti-union animus was the moving cause for the discharge; in essence whether the anti-union animus was the "but for" cause of the discharge. Stephenson v. N.L.R.B., 614 F.2d 1210 (9th Cir. 1980). The Board has the burden of proving that a discharge was motivated by anti-union animus. L'Eggs Products, Inc. v. N.L.R.B., 619 F.2d 1337, 1341 (9th Cir. 1980).
In reviewing the record, we leave matters of credibility to the trier of fact. We will affirm the trier of fact even though we might have drawn different conclusions if presented with the evidence de novo. Upon careful review of the record in this case, we find that the findings of the Board were supported by substantial evidence.
The company assails the Board's findings as consisting of impermissible inferences drawn from inconclusive evidence. We agree that the largely conflicting evidence in this case presents close questions of interpretation; we disagree, however, with the company's assertion that the inferences which the trier of fact chose to draw were...
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