N.L.R.B. v. Associated Milk Producers, Inc.
| Decision Date | 08 August 1983 |
| Docket Number | No. 82-4106,82-4106 |
| Citation | 711 F.2d 627 |
| Parties | 114 L.R.R.M. (BNA) 2213, 98 Lab.Cas. P 10,367 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED MILK PRODUCERS, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Robert E. Allen, Atty., N.L.R.B., Washington, D.C., for petitioner.
Stephen L. Andrew, Tulsa, Okl., for respondent.
Application for Enforcement of an Order of the National Labor relations board.
Before CLARK, Chief Judge, THORNBERRY, and POLITZ, Circuit Judges.
The National Labor Relations Board ruled that Donald Brower was discharged by his employer, Associated Milk Producers, Inc., in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3). The Board ordered full reinstatement with backpay. Because AMP refused to comply with the decision, the Board seeks enforcement of its order pursuant to § 10(e) of the Act, 29 U.S.C. § 160(e). We conclude that the Board's findings are supported by substantial evidence on the record considered as a whole, and enforce its order in full.
Brower was employed as an over-the-road truck driver at the Crowley, Texas facility of Associated Milk Producers. Like all over-the-road drivers at AMP, Brower's pay was based on the number of miles he drove during the pay period. Route drivers, on the other hand, were paid an hourly wage.
When Brower was hired, the teamsters local affiliated with the International Brotherhood of Teamsters was conducting an organizing campaign at the Crowley terminal. Brower was openly and vociferously opposed to the union. Brower's supervisor and the terminal manager of the Crowley facility, J.D. Foster, was aware of Brower's anti-union sentiments. At one point, the two men were discussing the activities of two union supporters. Foster told Brower that "he could get rid of anyone at anytime he wanted to, union or not," and that "he would get rid of agitators when the time came."
In September, 1979, Brower was sent on a run to the Oaks Farm Dairy Company in Dallas. When he attempted to back his truck toward an unloading bay door, he hit a column post and a steel cabinet. The accident resulted in $1500 damage to the truck. Brower reported the incident to Foster. Foster responded,
An election was eventually held, and the union lost. It filed objections with the National Labor Relations Board. The Board set aside the election and ordered that a new one be held.
In the spring of 1980, AMP announced that, from that time forward, over-the-road drivers would be paid by the hour rather than by the mile. This resulted in a 60% reduction in Brower's pay. Brower was furious. He immediately became a staunch supporter of the union, and communicated his change of heart to Foster in no uncertain terms. The congenial relationship that had developed between Foster and Brower disintegrated.
Brower was sent to the company's El Paso terminal for a load of milk. While he was there, Brower accused the company of being unfair and urged his fellow drivers to support the union. He also vilified AMP in a meeting with Bob Smith, the El Paso terminal supervisor.
Smith called Foster and told him not to send Brower to the El Paso terminal again. When Brower returned to Crowley, Foster placed him on "sick leave." Apparently, Foster was referring to Brower's remark that AMP's conduct made him sick. Foster said,
After several days of "sick leave," Brower filed an unfair labor practice charge with the Board. After a copy of this charge was sent to AMP, Brower was put back to work, this time as a route driver.
On his first day back on the job, Brower was sent to Vandervoot's Dairy in Fort Worth. In the process of backing his rig down the ramp of a loading bay, Brower scraped the left rear fender skirt of the trailer against the wall of the bay. The scratch was ten to twelve inches long. It was hardly noticeable among the many scratches and marks already present on the fender skirt. The mishap was observed by two witnesses. Neither witness said anything to Brower, but one reported the event to Foster two days later.
Foster called Brower to his office and charged Brower with failure to report an accident. Despite Brower's claim of ignorance, Foster discharged him. Foster cited the company rule, found in the drivers' manual, that provided: Brower asked how many other employees had been fired because they failed to report an accident. Foster answered,
The Board's General Counsel filed a complaint on Brower's behalf. An administrative law judge dismissed the complaint. The ALJ concluded that the General Counsel established a prima facie case that the company had violated section 8(a)(3), but that the company had successfully rebutted that case by proving that it would have discharged Brower notwithstanding his protected activities.
The General Counsel filed exceptions to the ALJ's decision. The Board reversed. The Board agreed that the General Counsel proved a prima facie case of unlawful discharge. It disagreed, however, with the ALJ's conclusion that AMP had successfully rebutted the prima facie case, and concluded that Brower had been illegally discharged. AMP's refusal to comply with the order has resulted in this appeal.
AMP argues that the Board improperly allocated the burden of proof. In Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), the Board formulated the correct allocation of the burden of proof in dual motive discharge cases such as this one. The Wright Line formula was recently approved by the Supreme Court in National Labor Relations Board v. Transportation Management Corp., --- U.S. ----, 103 S.Ct....
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