NLRB v. OA Fuller Super Markets, Inc.

• Decision Date: 08 March 1967
• Docket Number: No. 23072.,23072.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O. A. FULLER SUPER MARKETS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

374 F.2d 197 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O. A. FULLER SUPER MARKETS, INC., Respondent.

No. 23072.

United States Court of Appeals Fifth Circuit.

March 8, 1967.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Malcolm D. Schultz, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Herbert Bernhardt, Attys., N.L. R.B., for petitioner.

C. Allen High, Nashville, Tenn., for respondent.

Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, Circuit Judges.

THORNBERRY, Circuit Judge:

The National Labor Relations Board seeks enforcement of an order based upon a finding that respondent, O. A. Fuller Super Markets, Inc., violated sections 8 (a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § § 158(a) (1), (a) (3). Early in 1964, two unions made efforts to organize the employees at respondent's supermarket in Tuscumbia, Alabama. By February 10, 1964, eleven of the supermarket's fourteen employees had signed union authorization cards. Davis, the store manager, had been informed of this fact and had been given copies of the cards. On May 9, 1964, store manager Davis discharged Larry Lewis, a checker employed by the supermarket since the early part of 1963, who had been one of the eleven employees to sign union cards. On June 22, 1964, in response to charges filed by the interested unions, a complaint was issued alleging that respondent had violated section 8(a) (3) of the Act by discharging Lewis because of union activity. The complaint also charged that respondent had violated section 8(a) (1) by acts of interrogation and intimidation of other employees concerning their union activities.

Following a hearing conducted on September 11, 1964, the trial examiner concluded that respondent had not violated the Act in either respect. On April 29, 1965, however, the Board reversed the trial examiner's conclusions and ruled that respondent had violated both sections 8(a) (1) and 8(a) (3). The Board accordingly ordered respondent to cease and desist from discouraging union membership and activities among its employees by means of interrogation, discrimination, and coercion. In addition, respondent was ordered to offer Lewis, the discharged employee, reinstatement with back pay. After careful review of the entire record upon which the Board bases its order, we are unable to conclude that there is substantial evidence to support either unfair labor practice determination, and we therefore deny enforcement.

I. The Section 8(a) (3) Violation.

Here, as in all controversies involving judicial review of administrative determinations, we begin with the premise that the Board's decision must be sustained if supported by substantial evidence on the record considered as a whole. NLRB v. Brown, 1965, 380 U.S. 278, 291, 85 S.Ct. 980, 983, 13 L.Ed.2d 839, 849; Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Accordingly, if the Board's determination is based upon such relevant evidence as a reasonable mind might accept as adequate to support it, we are not at liberty to deny enforcement simply because the evidence may also reasonably support other conclusions or because we might justifiably have reached a different conclusion had the matter come before us de novo. NLRB v. Camco, Inc., 5th Cir. 1966, 369 F.2d 125. This "limited" scope of review does not, however, require us to abdicate our responsibility to the extent of merely "rubberstamping" our affirmance of the Board's decision when, after full review of the record, including the evidence opposed to the Board's views, we are unable conscientiously to conclude that the evidence supporting such decision is substantial. Universal Camera Corp. v. NLRB, supra, 340 U.S. at 488, 71 S.Ct. at 465, 95 L.Ed. at 467; see NLRB v. Brown, supra, 380 U.S. at 291, 85 S.Ct. at 988, 13 L.Ed.2d at 849. To justify enforcement of an order of the Board the evidence must do more than merely create a suspicion of the existence of facts upon which the order is based; indeed, a discriminatory act on the part of the employer is not in itself unlawful unless intended to prejudice an employee's position because of his union activity, i. e., some element of antiunion animus is necessary. See Radio Officers' Union, etc. v. NLRB, 1954, 347 U.S. 17, 42-44, 74 S.Ct. 323, 337, 98 L.Ed. 455, 478-479. Thus, in controversies involving employee discharges, the motive of the employer is the controlling factor, NLRB v. Brown, supra, 380 U.S. at 287, 85 S.Ct. at 985-986, 13 L. Ed.2d at 846, and, absent a showing of antiunion motivation, an employer may discharge an employee for a good reason, a bad reason, or for no reason at all. NLRB v. I. V. Sutphin, Co-Atlanta, Inc., 5th Cir., February 8, 1967, 373 F.2d 890; NLRB v. Longhorn Transfer Serv., Inc., 5th Cir. 1965, 346 F.2d 1003, 1006. If the specific employee happens to be both inefficient and engaged in union activities, that coincidence standing alone is insufficient to destroy the just cause for his discharge. NLRB v. Soft Water Laundry, Inc., 5th Cir. 1965, 346 F.2d 930, 934. Only if the Board adequately sustains its burden of producing evidence on the record as a whole which establishes a reasonable inference of causal connection between the employer's antiunion motivation and the employee's discharge can its order properly be enforced.¹ See NLRB v. Soft Water Laundry, Inc., supra, 346 F.2d at 936; Schwob Mfg. Co. v. NLRB, 5th Cir. 1962, 297 F.2d 864, 868. With these necessarily subjective guidelines before us, we turn to the facts underlying Lewis' discharge to ascertain whether the Board's finding of antiunion motivation is supported by substantial evidence on the record as a whole.

Whether or not there exists a background of antiunion animus or a widespread pattern of antiunion conduct represents a significant consideration where the true motivation of the employer is ambiguous. Schwob Mfg. Co. v. NLRB, supra, 297 F.2d at 868. Here, the record fails to disclose any labor difficulties between the employer and its employees prior to the occurrence at issue. Eleven of the supermarket's fourteen employees had signed union authorization cards approximately three months prior to Lewis' discharge and there is no evidence that anyone had suffered adverse consequences as a result of such union activity. Moreover, there is no indication that Lewis assumed any substantial role in furtherance of union organizational attempts.² On the other hand, there is abundant evidence that Lewis was a less than satisfactory employee. Store manager Davis testified that Lewis was the "sorriest employee" he had ever had, and that he would have discharged him earlier were it not for fear that such action might have appeared motivated by antiunion sentiment. Davis further testified that he had reprimanded Lewis on previous occasions concerning eating, smoking, and excessive talking and whispering in the check-out area, and, above all, concerning his discourtesy toward customers.³ In addition to the testimony of Davis two other employees testified that Lewis had been discourteous to customers on numerous occasions.⁴

In opposition to the foregoing evidence, the Board apparently rests its entire case upon one statement made by Davis to Lewis on the date of his discharge. On May 9, 1964, Davis called Lewis into a backroom shortly before he was scheduled to leave work for the day and, according to the testimony of Lewis, the following colloquy transpired:

So, I went to the backroom and he told me, he says, `Larry, this hasn\'t got anything to do with the Union, but I am going to have to let you go,\' and I asked him `Why?\' and he said, that first of all, I was politicking for the Union, which was against Company policy, and he said I was smoking, drinking, eating, behind the check-out in the check-out lanes, and I wasn\'t courteous to customers, and my check-out lane was pretty dirty from stomping cigarettes on the floor.

Joint Appendix, p. 6. Davis admitted that "politicking in the check-out lane" was one of the reasons he had given Lewis for his discharge. In its decision and order reversing the trial examiner's determination that no unfair labor practice had been established, the Board accepted the single statement relating to "politicking for the Union" at face value, apparently disregarding all remaining evidence bearing upon the unsatisfactory work of Lewis. We cannot conclude, in light of the evidence in its entirety, that the Board was justified in removing this statement from its factual context in order to reasonably infer that Lewis' discharge was motivated by a desire to "encourage or discourage union membership by means of discrimination." Radio Officers' Union, etc., v. NLRB, supra, 347 U.S. at 42, 74 S.Ct. at 337, 98 L.Ed. at 478. To be sure, the inarticulate choice of words employed by Davis in enumerating the reasons for Lewis' discharge, when viewed apart from the record as a whole, does appear to represent direct evidence of antiunion motivation. We may not, however, rest our determination of the substantiality of evidence solely upon those facts which serve to justify the Board's decision, but must properly take into account all contradictory evidence as well as evidence from which conflicting inferences may be drawn. Universal Camera Corp. v. NLRB, supra, 340 U.S. at 487-488, 71 S.Ct. at 464, 95 L.Ed. at 467. Therefore, in addition to the evidence relating to Lewis' inferior work, we deem it appropriate to consider the contrary conclusions reached by the...