Synergy Gas Corp. v. N.L.R.B.
| Decision Date | 25 March 1994 |
| Docket Number | No. 92-1553,92-1553 |
| Citation | 19 F.3d 649 |
| Parties | 145 L.R.R.M. (BNA) 2855, 305 U.S.App.D.C. 210, 127 Lab.Cas. P 11,060 SYNERGY GAS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Elliot J. Mandel, Melville, NY, argued the cause for petitioner/cross-respondent. With him on the briefs was Peter A. Schneider.
William M. Bernstein, Atty., N.L.R.B., Washington, DC, argued the cause for respondent/cross-petitioner. With him on the brief was Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B. Peter D. Winkler, entered an appearance.
Before SILBERMAN, SENTELLE, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Synergy Gas Corporation ("the Company") petitions for review of a decision of the National Labor Relations Board ("NLRB" or "Board") finding that Synergy had engaged in several unfair labor practices. Synergy Gas Corp., 309 N.L.R.B. No. 18 (1992). Respondent, the NLRB, cross-petitions for enforcement of its order. While we find most of the Company's claims to be without merit, the record does not reveal substantial evidence to support the Board's conclusion that the Company would not have dismissed one employee, Thomas Nastasi, even absent his pro-union sentiments. We therefore grant the Company's petition for review as to that one violation and deny the Board's application for enforcement with respect to the discharge of this employee only.
Synergy Gas is a corporation engaged in the retail sale and distribution of propane gas. The events in question here concern Synergy's branch located in Cold Spring, New York. On March 3, 1989, Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO ("the Union") was certified as the exclusive collective bargaining representative of the Cold Spring branch employees in a unit of drivers, installers, servicemen and yardmen.
In the months following the election, the Union, as well as one individual employee, filed a series of unfair labor practice charges against the Company. These charges were heard in a consolidated hearing before an Administrative Law Judge ("ALJ"), who concluded that the Company had violated the National Labor Relations Act ("the Act") with respect to all claims.
The Company appealed this determination to the full Board, which adopted the ALJ's findings of fact and concluded that the Company had engaged in unfair labor practices with respect to five separate incidents. First, the Board found that the Company violated section 8(a)(1) of the Act, 28 U.S.C. Sec. 158(a)(1) (1988), by threatening to withhold a promised pay raise from employee Stephen Brady in order to discourage support for the Union. Second, the Board found that the Company had violated section 8(a)(1) by telling another employee that it "would not allow the Union to get into [the Cold Spring] branch under any circumstances at all." Third, the Board found that the Company violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. Secs. 158(a)(1) and (3), by firing Thomas Nastasi because of his support for the Union and by withholding a promised pay raise from Stephen Brady in order to discourage support for the Union. Fourth, the Board found that the Company had violated sections 8(a)(1), (3) and (4) of the Act, 29 U.S.C. Secs. 158(a)(1), (3) and (4), by failing to pay Frank DePolito for overtime work because he supported the Union and had filed an unfair labor practice charge against the Company. Finally, the Board found that the Company violated sections 8(a)(1) and (5) of the Act, 29 U.S.C. Secs. 158(a)(1) and (5), by laying off three employees without first bargaining with the Union.
As a remedy, the Board ordered that the Company cease and desist from the violations found and any like or related activities. The Board also ordered the Company to offer to reinstate Nastasi and the three employees who were laid off and to make them whole for any losses they suffered as a result of the Company's illegal actions. Finally, the Board ordered the Company to make Brady and DePolito whole for its failure to grant Brady a promised raise and to pay DePolito overtime.
In its appeal to this Court, the Company argues that the Board's findings are not supported by substantial evidence in the record. In addition, the Company challenges the propriety of the Board's remedy with respect to the three laid-off employees.
This Court will not disturb an order of the NLRB unless, reviewing the record as a whole, it appears that the Board's factual findings are not supported by substantial evidence or that the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue. United Food and Commercial Workers Int'l Union v. NLRB, 880 F.2d 1422, 1429 (D.C.Cir.1989). If there is substantial evidence to support the Board's conclusions, we will uphold the Board's decision even if we would have reached a different result had we considered the question de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). However, our review "must take into account whatever in the record fairly detracts from [the] weight" of the evidence cited by the Board to support its conclusions. Id. We will not "merely rubber stamp NLRB decisions." Gold Coast Restaurant Corp. v. NLRB, 995 F.2d 257, 263 (D.C.Cir.1993) (internal quotation omitted).
After reviewing the record and the arguments of counsel, we conclude that the Company's claims with respect to DePolito, Brady, and the three laid-off employees, Battaglia, Cronk, and Demerest, are meritless and warrant no discussion here. The Company's petition for review is therefore denied and the Board's cross-petition for enforcement is granted with respect to these five employees. In addition, the Board's unchallenged findings that the Company violated the Act by threatening to withhold a promised pay raise from Brady and by telling Nastasi that it would not allow the Union into its plant "under any circumstances at all" are entitled to affirmance. The Board's conclusion with respect to the discharge of Thomas Nastasi requires greater exploration, however. We now turn our attention to that claim.
Thomas Nastasi was fired from his job as a truck driver for the Company. The ALJ found that his discharge was motivated by anti-union animus and therefore violated sections 8(a)(1) and (3) of the Act. The Board adopted the ALJ's findings of fact and affirmed the ALJ's conclusion of law. See Synergy Gas Corp., 309 N.L.R.B. No. 18 (1992).
The ALJ found the facts surrounding Nastasi's discharge as follows: Nastasi was one of the Cold Spring employees who signed union authorization cards in December of 1988, paving the way for the Union's certification in February, 1989 as the exclusive collective bargaining representative of the Cold Spring branch employees. In April, 1989, the Cold Spring branch manager, Reid Bollick, told Nastasi that, if the Union called a strike, he hoped Nastasi "would be the one to cross the picket line." Nastasi responded that there was "no way" he would do that. Bollick then stated that the Company "would not allow the Union to get into [the Cold Spring] branch under any circumstances at all."
Five months later, on September 21, 1989, Nastasi was delivering propane gas to customers in a hilly area. Nastasi had to make a delivery "up a steep, narrow dirt road." On his way down the hill, his truck "suddenly dropped into a washout." His head hit the door jamb, he lost consciousness, and awoke to find that the truck had gone down an embankment. The accident caused approximately $5,000 damage to the truck.
Nastasi reported for work the next day and asked Branch Manager Bollick what would happen to him. Bollick replied that as far as he was concerned, nothing would happen to Nastasi because he was a good employee with a good record. He told Nastasi to go home and rest. Nastasi was fired the next work day. The Company explained that it was discharging Nastasi for his gross negligence in causing the accident.
The Board found that the Company's firing of Nastasi violated sections 8(a)(1) and (3) of the Act. Section 8(a)(1) declares it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by the Act. 29 U.S.C. Sec. 158(a)(1). Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate "in regard to ... tenure of employment or any term or condition of employment to ... discourage membership in any labor organization." Id. Sec. 158(a)(3).
When an employee alleges that his discharge was in violation of the Act, the critical question is whether anti-union considerations spurred his firing, for "the NLRA proscribes only terminations that are motivated by the [employee's] union activities." Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 912, 116 L.Ed.2d 812 (1992). Thus, an employer does not violate the Act merely by firing a union member; nor may an employee shield himself from all possibility of termination merely by becoming a union activist. Id.
In Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), the NLRB established a framework for assessing whether an employer's anti-union sentiments motivated the discharge of a particular employee. The Supreme Court approved this test in NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Under the Wright Line test, the Board's General Counsel bears the initial burden of demonstrating that "an antiunion animus contributed to the employer's...
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