Neptune Water Meter Co., a Div. of Neptune Intern. Corp. v. N.L.R.B.

• Decision Date: 11 March 1977
• Docket Number: No. 76-1097,76-1097
• Citation: 551 F.2d 568
• Parties: 94 L.R.R.M. (BNA) 2513, 95 L.R.R.M. (BNA) 2718, 81 Lab.Cas. P 13,025 NEPTUNE WATER METER COMPANY, a Division of Neptune International Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 568

551 F.2d 568

94 L.R.R.M. (BNA) 2513, 95 L.R.R.M. (BNA) 2718,

81 Lab.Cas. P 13,025

NEPTUNE WATER METER COMPANY, a Division of Neptune

International Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 76-1097.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 5, 1976.

Decided Feb. 1, 1977.

Rehearing En Banc Denied March 11, 1977.

Robert L. Thompson, Atlanta, Ga. (Elarbee, Clark & Paul, Atlanta, Ga., on brief), for petitioner.

Howard Perlstein, Atty., N.L.R.B., Washington, D. C. (John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Grant E. Morris, Jr., Atty., N.L.R.B., Washington, D. C., on brief), for respondent.

Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.

CRAVEN, Circuit Judge:

This is a petition for review and cross-application for enforcement of an order of the National Labor Relations Board. The Board found that the Company violated § 8(a)(1) of the Act by interrogating, interfering restraining, coercing, threatening and engaging in surveillance of its employees with respect to their Union or concerted activities, and violated § 8(a)(3) and (1) of the Act by discharging employees Thomas T. McLemore and William D. Tyson because of their Union activity. The only question presented on appeal is whether the Board's findings of fact are supported by substantial evidence.

The Company admits, with respect to the § 8(a)(1) violation, that the Board's findings of alleged threats and interrogation are based upon conflicting testimony, and where that is true the Board may decide which version to believe. Petitioner's Brief at 32. The Company nevertheless insists that the discharges of Thomas McLemore and William Tyson were for just cause under § 10(c) of the Act and were not wrongfully motivated. It is true that the trial examiner concluded that the Company had reason to be dissatisfied with McLemore's record for tardiness. App. 67. But he nevertheless found that the motivation for termination was not tardiness but the Company's knowledge that McLemore had signed an authorization card and had joined with others to support the Union.

The same thing can be said of Tyson. He had unexcused absences attributable to drunkenness, App. 69, but it was not until after the election at which Tyson had been the Union observer that he was discharged. In the course of deciding that Tyson was discharged for his Union activism, the Board weighed conflicting factors: his supervisor's manifest antipathy to Tyson's advocacy of the Union, his satisfactory work performance as reflected by periodic raises, and his unexcused absences. App. 74.

It is for the Board and not for us to decide whether McLemore and Tyson were fired for just cause or for Union adherence and activity. NLRB v. Lester Bros., Inc., 337 F.2d 706, 708 (4th Cir. 1964). Nor is the Board's finding of invidious motivation impaired by its findings of tardiness and unexcused absences. It is settled in this circuit, and most of the others, ¹ that "it is enough that a discriminatory motive was a factor in the employer's decision." Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 304 (4th Cir. 1968); Winn-Dixie Stores, Inc. v. NLRB, 448 F.2d 8, 13 n. 16 (4th Cir. 1971); NLRB v. Hanes Hosiery Div., Hanes Corp., 413 F.2d 457, 458 (4th Cir. 1969); Filler Products, Inc. v. NLRB, 376 F.2d 369, 377 (4th Cir. 1967).

In Firestone Tire and Rubber Co. v. NLRB, 539 F.2d 1335 (4th Cir. 1976), we said that " 'the burden which is on the Board is not simply to discover some evidence of improper motive, but to find an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one.' " Judge Russell was writing in the context of an employer with long experience in labor relations and without the slightest indication of anti-union animus. Indeed the findings of fact in the Firestone case did not disclose that the Company official who actually fired the employee even knew of his activities as a Union steward.

Firestone is not to be read to mean that there is a dichotomy between good and bad reasons. It does not change the rule in this circuit that discriminatory motivation need be only a factor in the discharge. Rather, it made clear that where there is evidence of a proper motive for dismissal, the Board's mere characterization of the Company's assigned reason as "pretextual," without citation of evidence indicating invidious purpose, will not suffice. In short, mere union membership and concerted activity does not, of course, insulate a worker from being discharged for just cause. Nor does an employer's anti-union animus destroy his right to discipline for just cause. But these are not irrelevant factors, as Judge Russell concedes, and may be considered by the Board in drawing an inference that invidious motivation was a factor in deciding to discharge.

The rule is that if the employee has behaved badly it won't help him to adhere to the Union, and his employer's anti-union animus is not of controlling importance. But if the employee is a good worker and his breach of the work rules trivial, the more rational explanation for discharge may be invidious motivation. Such motivation can be found from the absence of any good cause for discharge. This must be so unless we are willing to assume something we know to be false: that businessmen hire and fire without any reason at all.

In the end after weighing all relevant factors including particularly the gravity of the offense, an unfair labor practice may be found only if there is a basis in the record for a finding that the employee would not have been discharged, though he may have been subjected to a milder form of punishment for the offense, except for the fact of his union activity.

When McLemore was hired, he was instructed by the personnel supervisor that "he was not to pay any attention" when someone asked him to sign a union card or attend a meeting. App. 62, 177. McLemore violated these instructions by signing a card and going to a union meeting. App. 63, 180. When he was fired, his supervisor said, "I told you about that union business." App. 63, 181. Or as another witness expressed it, "I warned you about messing with the union." App. 64, 67, 155, 169, 236.

The gloating refrain, "I told you so," probably reveals a person's intention as clearly as any other phrase in the English language. Certainly in this case it serves to sustain the Board's finding that the Company's alleged reason for the discharge was a sham. ²

Our review of the record reveals substantial evidence to support the Board's finding of discriminatory motivation in the dismissals of McLemore and Tyson, as well as the 8(a)(1) violations, and accordingly the Board's order will be

ENFORCED.

DONALD RUSSELL, Circuit Judge, dissenting:

I dissent from the holding in the majority opinion that the Board's order for the reinstatement of the employee McLemore should be enforced.

In Firestone Tire and Rubber Company v. National Labor Relations Board (4th Cir. 1976) 539 F.2d 1335, we denied reinstatement in an employee's discrimination case under the National Labor Relations Act, applying the rule that where an employer has "good ground for the discharge of an employee," it will not do for the Board, in order to support an order of reinstatement, "simply to discover some evidence of improper motive," but it must "find an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one." Nor was there anything novel or unusual about the reliance upon such a rule as a basis for denying reinstatement. As long ago as 1940, we declared that, "(t)he employer must be permitted to discharge the inefficient, the irresponsible, the disobedient, the immoral" and that, when the employer's explanation for the discharge "is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation;" nor does the Board sustain such "onus" merely by proving that the employee was a union member or was active in union organization. Martel Mills Corp. v. National Labor Relations Bd. (4th Cir. 1940) 114 F.2d 624, 631, and 633. This is not to say that union membership or, as I point out later, even employer anti-animus is not relevant but it is to say that, standing alone or together, they are not sufficient to satisfy the burden the Board bears in a case where there is a valid and legitimate reason for discharge. This point was made clear in N.L.R.B. v. United Brass Works, Inc. (4th Cir. 1961) 287 F.2d 689, 693, where we said that the fact that the discharged employee "was a union member and an active movant in the organizational drive will not shield him from release for good cause. (Citing Martel ) If discrimination may be inferred from mere participation in union organization and activity followed by a discharge, that inference disappears when a reasonable explanation is presented to show that it was not a discharge for union membership." (Italics added) We repeated the same thought recently in Torrington Company v. N.L.R.B. (4th Cir. 1974) 506 F.2d 1042, 1047:

"In determining employer motivation for an alleged unlawful discharge, all the circumstances of each case must be weighed; this is the function of the Board, and conflicts in testimony, or inferences to be drawn therefrom, must be resolved in the Board's favor. J. P. Stevens & Co. v. NLRB, 406 F.2d 1017, 1020 (4th Cir. 1968); Filler Products, Inc. v. NLRB, 376 F.2d 369, 378 (4th Cir. 1967). This court has held, however, that an inference of discrimination resulting from mere participation in union organization and activity, followed by a discharge, disappears when a reasonable explanation is presented to show that the discharge was not for union membership. NLRB v. United Brass Works, Inc., 287 F.2d 689, 693 (4th Cir. 1961)."

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