N.L.R.B. v. Transportation Management Corp., No. 81-1537

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN; PER CURIAM; BREYER
Citation674 F.2d 130
Parties109 L.R.R.M. (BNA) 3291, 93 Lab.Cas. P 13,385 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORTATION MANAGEMENT CORP., Respondent.
Docket NumberNo. 81-1537
Decision Date01 April 1982

Page 130

674 F.2d 130
109 L.R.R.M. (BNA) 3291, 93 Lab.Cas. P 13,385
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
TRANSPORTATION MANAGEMENT CORP., Respondent.
No. 81-1537.
United States Court of Appeals,
First Circuit.
Argued Jan. 8, 1982.
Decided April 1, 1982.

Carol A. De Deo, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for petitioner.

C. Fred Welensky, Boston, Mass., for respondent.

Page 131

Before COFFIN, Chief Judge, TIMBERS, * Senior Circuit Judge, and BREYER, Circuit Judge.

PER CURIAM.

The National Labor Relations Board seeks enforcement against the Transportation Management Corporation (the "Company") of an order based upon Board findings that the Company violated § 8(a)(1) 1 and § 8(a)(3) 2 of the National Labor Relations Act. Several of the findings of § 8(a)(1) violations are adequately supported by the record. The record reveals, for example, that Paterson, a supervisor, spoke to West, an employee and the brother-in-law of Santillo, another employee who was a union activist. In the conversation Paterson referred to Santillo's union activity, suggested that he (Paterson) was taking it "personal," noted that he had previously given Santillo favors (such as letting him park his car in Paterson's yard and giving him time off in the summer to work on another job), and threatened that in the future "I'll remember it." Paterson also told a different employee, Baer, that he would "get even" with Santillo. While Paterson's motives were the subject of conflicting testimony, there is ample ground for a fact finder to conclude that Paterson's threats were union-oriented, gave an impression of surveillance, see NLRB v. Rich's of Plymouth, Inc., 578 F.2d 880 (1st Cir. 1978), and constituted unlawful coercion. NLRB v. A. Lasaponara & Sons, Inc., 541 F.2d 992, 996-97 (2d Cir. 1976), cert. denied, 430 U.S. 914, 97 S.Ct. 1325, 51 L.Ed.2d 592 (1977).

The Board also found the Company's discharge of Santillo unlawful under both §§ 8(a)(1) and 8(a)(3) of the Act. In making this finding, however, the Board did not conclude that "upon the preponderance of the testimony taken," it was "of the opinion" that the Company had engaged in an unfair labor practice. National Labor Relations Act § 10(c), 29 U.S.C. § 160(c). Rather, it based its finding of a violation upon a conclusion that the Company "failed to meet its burden of overcoming the General Counsel's prima facie case by establishing by competent evidence that Santillo would have been discharged even absent his union activities." (Emphasis added.) While this court has upheld the Board's practice of imposing upon the Company the burden of neutralizing the implication of sufficient anti-union motive arising from the General Counsel's prima facie case, Statler Industries, Inc. v. NLRB, 644 F.2d 902 (1st Cir. 1981); NLRB v. Amber Delivery Service, Inc., 651 F.2d 57 (1st Cir. 1981); NLRB v. Cable Vision, 660 F.2d 1 (1st Cir. 1981), it has rejected both explicitly, NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), and implicitly, NLRB v. Amber Delivery Service, Inc., 651 F.2d at 69; NLRB v. Cable Vision, 660 F.2d at 8; NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 n.12 (1st Cir. 1979), 3 any effort by the Board to impose a greater burden than this upon the Company, as outside the Board's statutory authority. We therefore remand this case to the Board for reconsideration under the standard of NLRB v. Wright Line, supra. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Since the Board's order is based in

Page 132

large part upon Santillo's discharge, we do not believe that partial enforcement at this time is appropriate.

So ordered.

BREYER, Circuit Judge (concurring).

The Board, in oral argument in this case and in briefs in subsequent cases, has indicated an unwillingness to follow this court's decision in NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), and has asked for reconsideration. While I join the court's opinion here, I also concur separately to state my reasons for rejecting the Board's request.

First, I think the Board may overestimate the extent of the difference between its formulation and our own. Both Board and court agree that in a "dual motive" discharge case "the initial inquiry is whether the Board has made a prima facie showing that a 'significant improper motivation' underlay the Company's action." NLRB v. Cable Vision, 660 F.2d 1, 8 (1st Cir. 1981); NLRB v. Amber Delivery Service, 651 F.2d 57, 69 (1st Cir. 1981); Statler Industries, Inc. v. NLRB, 644 F.2d 902, 905 (1st Cir. 1981); NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (1st Cir. 1979). In making this prima facie case, the Board must establish the "requisite knowledge by the Company of union activity." The "bad reason may (then) be shown by independent evidence or by the circumstances of the discharge itself." NLRB v. Eastern Smelting & Refining Corp., 598 F.2d at 670. Both Board and court also agree that thereafter "the burden ... shifts to the Company to 'prove that it had a good reason, sufficient in itself, to produce' the (discharge) ... Statler Industries, Inc. v. NLRB, 644 F.2d at 905, quoting NLRB v. Eastern Smelting & Refining Corp., 598 F.2d at 671." NLRB v. Cable Vision, 660 F.2d at 8. But, the Board and court apparently do not agree about who should win if, after both sides have submitted their evidence, the evidence is in...

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    ...Court has recently granted certiorari to resolve the Wright Line question in a NLRA case. See NLRB v. Transportation Management Corp., 674 F.2d 130 (1st Cir.), cert. granted, --- U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d ---- 16 The ALJ specifically found that this meeting took place approximate......
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    ...employee contends that an employer's otherwise legitimate act masks an impermissible purpose. See NLRB v. Transportation Management Corp., 674 F.2d 130 (CA1) cert. granted, 459 U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d 506 (1982). 8. The Board's position on this question has not always been enti......
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    ...Court recently granted certiorari in a case that squarely presents the burden-shifting issue. See NLRB v. Transportation Management Corp., 674 F.2d 130 (1st Cir.) (per curiam), cert. granted, --- U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d 506 6 Royal contends that this testimony should be exclude......
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15 cases
  • N.L.R.B. v. American Geri-Care, Inc., GERI-CAR
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 23, 1982
    ...Court has recently granted certiorari to resolve the Wright Line question in a NLRA case. See NLRB v. Transportation Management Corp., 674 F.2d 130 (1st Cir.), cert. granted, --- U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d ---- 16 The ALJ specifically found that this meeting took place approximate......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 18, 1983
    ...Behring, 675 F.2d at 90 (footnote omitted). The Supreme Court has recently granted certiorari in NLRB v. Transp. Management Corp., 674 F.2d 130 (1st Cir.) (per curiam), cert. granted, --- U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d 506 (1982), to resolve the conflict between the Board and various ......
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    • United States Supreme Court
    • April 4, 1983
    ...employee contends that an employer's otherwise legitimate act masks an impermissible purpose. See NLRB v. Transportation Management Corp., 674 F.2d 130 (CA1) cert. granted, 459 U.S. ----, 103 S.Ct. 372, 74 L.Ed.2d 506 (1982). 8. The Board's position on this question has not always been enti......
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