N.L.R.B. v. Town & Country LP Gas Service Co.
| Decision Date | 21 September 1982 |
| Docket Number | No. 81-2182,81-2182 |
| Citation | 687 F.2d 187 |
| Parties | 111 L.R.R.M. (BNA) 2196, 95 Lab.Cas. P 13,742 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOWN & COUNTRY LP GAS SERVICE COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Helen Morgan, Elliott Moore, N.L.R.B., Washington, D. C., for petitioner.
Donald M. Samson, Stiehl & Hess, Belleville, Ill., for respondent.
Before WOOD and ESCHBACH, Circuit Judges, and CAMPBELL, Senior District Judge. *
The National Labor Relations Board (Board) petitions for enforcement of its order dated April 23, 1981, which concluded that respondent Town & Country LP Gas Service Co. (company) had violated Sections 8(a)(1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3) and (4), by laying off and ultimately discharging its employee, Charles Tressler. We are asked to decide: (1) whether Tressler's conduct in pursuing a successful grievance which resulted in reinstatement and an award of backpay for him after an earlier discharge was an activity protected by 29 U.S.C. § 157; and (2) whether it was proper for the Board to conclude that the periodic layoffs Tressler experienced after being reinstated, and his second discharge, were in retaliation for Tressler's pursuit of the successful grievance and for having filed unfair labor practice charges with the Board. As the company is an employer engaged in commerce within the meaning of the National Labor Relations Act and the alleged unfair labor practices took place at the company's LP gas facility in Chester, Illinois, our jurisdiction is founded on 29 U.S.C. § 160(e). We grant enforcement of the Board's order.
Town & Country sells and delivers bulk and cylinder liquid propane, gas appliances and ancillary equipment from its Chester, Illinois facility. The company is a subsidiary of Dashner Gas Service Company of Red Bud, Illinois. Vernon Dashner owns and is the president of both entities, although they are generally operated independently; they have separate payrolls and different customers and employee interchange is infrequent. The relevant bargaining unit is represented by Local 50 of the Teamsters Union and at the times in question consisted of but two persons, Ed Roche and Charles Tressler, who drove Town & Country's delivery trucks and also performed some installation and maintenance work on equipment sold by the company.
For a period of several months prior to February, 1980, truckdrivers Roche and Tressler followed a practice of driving home in company pickup trucks. One of the duties for which they received overtime pay was to answer night calls to make gas deliveries and perform maintenance services for customers, and the practice of driving home in company trucks served the company's purposes to the extent that it made it easier for the drivers to respond to these after-hours calls. President Dashner knew about this practice all along and raised no objections to it while it was occurring. Both drivers ceased driving home in company trucks during the early part of 1980, but the record is unclear as to why they abandoned the practice. 1
On March 21, 1980, some weeks after he had ceased driving company trucks home, Tressler was discharged by Dashner; the reasons given were: "unauthorized use of the pickup truck and for gas burned off the pickup truck." On March 31, 1980, pursuant to the applicable collective bargaining agreement, Tressler filed a grievance concerning his discharge; he filed an unfair labor practice charge with the Board at about the same time.
Near the end of April, 1980, shortly before the collective bargaining agreement was to expire, Dashner and the company's lawyer met with an agent of the local union to consider renewing the contract. During the ensuing discussion, the union officer insisted that Tressler be reinstated. After Dashner rejected this proposal, the union agent said the matter would be taken to arbitration. About one week later, however, the company lawyer contacted the union agent and indicated that a decision had been made to reinstate Tressler with backpay. Later in the same day, Dashner telephoned the union agent and requested resumption of contract talks. On May 13, 1980, in settlement of his grievance, Tressler was allowed to resume work with full backpay. He withdrew the original unfair labor practice charge.
During the second week after he returned to work, Tressler's schedule was reduced from five to three working days per week. After encountering similar two-day layoffs in each subsequent week, Tressler filed a new unfair labor practice charge with the Board on June 19, 1980. Also in mid-June, 1980, Dashner presented Tressler with a company invoice which purported to charge Tressler $4,194 for his previous use of the company's truck. Dashner orally stated "(Y)ou've got your backpay and I want my money." On the afternoon of June 27, 1980, Dashner demanded that Tressler produce the money for the use of the truck. After Tressler responded that he did not have the money, Dashner handed him a notice of immediate permanent discharge which stated that because of declining sales the company no longer needed the services of two truckdrivers. 2
After the Board issued an unfair labor practice complaint, a hearing was held in this case before an administrative law judge (ALJ) on September 23, 1980. The ALJ issued his findings and conclusions on November 28, 1980. Based on a determination that Tressler's layoffs and second discharge were not motivated by any anti-union animus on the part of the company, the ALJ recommended that the complaint be dismissed in its entirety. However, in a decision and order dated April 23, 1981, the Board drew a different conclusion from the evidence and decided against the company. The Board concluded that the company had retaliated against Tressler for filing his grievance and unfair labor practice charges. The company was ordered to cease and desist from such discriminatory practices, to reinstate Tressler with backpay and to post a corrective notice.
As a general principle, we will defer to the Board's findings if they are supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e). To the extent that the Board has disagreed with the ALJ, ordinarily "we must examine the evidence more closely to determine if it is substantial." NLRB v. P.P.G. Industries, Inc., 579 F.2d 1057, 1058 (7th Cir. 1978). However, an analysis of the Board's analytical framework reveals that although the Board drew its own conclusions from the ALJ's subsidiary factual findings, the Board really did not differ with those basic findings.
The Board analyzed the evidence in accordance with its "Wright Line" 3 decision which sets forth a bright-line rule for resolving "dual motive" discharge cases. Under the Wright Line rule, which this court subsequently endorsed in Peavey Co. v. NLRB, 648 F.2d 460 (7th Cir. 1980), the Board's counsel must make a prima facie showing that the employee's protected union conduct was a motivating factor in his discharge, whereupon the burden shifts to the employer to demonstrate that the employee would have been discharged even in the absence of the protected conduct. Id. at 461. The Board determined that a sufficient prima facie case of illegal motives had been established and that the company's showing that Tressler's layoffs and ultimate discharge were dictated by a downturn in the company's business was insufficient to rebut the prima facie case. Although the ALJ declined to infer illegal motives, his decision nowhere indicates that the evidence is insufficient to permit such an inference. In fact, the ALJ never identified the reasons for the company's apparently disparate treatment of Tressler. Since the first discharge occurred before there were any manifestations of anti-union animus and since the ALJ concluded that the factors which prompted the company to reduce Tressler's work schedule and ultimately discharge him in June of 1980 were the same as those which prompted his earlier discharge, the ALJ reasoned that regardless of the nature of these motives they were not illegal. Furthermore, having declined to infer illegal motives, the ALJ found it unnecessary to determine whether the company's economic conditions could be regarded as a sufficient justification for Tressler's layoffs and ultimate discharge. Thus, the Board's finding of illegal motives represents a departure from the ALJ's reasoning process rather than a rejection of his subsidiary factual findings. Under these circumstances, although we shall examine the evidence rigorously, we nevertheless will sustain the Board's order as long as it is legally sound and supported by substantial evidence.
A threshold question is whether Tressler's pursuit of his March 31, 1980 grievance was an activity protected by the federal labor laws. Although the parties have effectively conceded this point, we believe that it warrants some discussion in order to dispel the notion that the pursuit of every manner of individual grievance is, without more, a "protected activity." Section 7 of the National Labor Relations Act provides in pertinent part as follows:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ....
Consistent with the statute's emphasis on collective activity, this court adheres to the following construction of Section 7:
"(I)n order to prove a concerted activity under Section 7 of the Act, it is necessary to demonstrate that the activity was for the purpose of inducing or preparing for group action to correct a grievance or a complaint."
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