Teledyne Industries, Inc. v. N.L.R.B.

• Decision Date: 23 August 1990
• Docket Number: 89-5885,Nos. 89-5809,s. 89-5809
• Citation: 911 F.2d 1214
• Parties: 135 L.R.R.M. (BNA) 2274, 116 Lab.Cas. P 10,278 TELEDYNE INDUSTRIES, INC., doing business as Teledyne Still-Man, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1214

911 F.2d 1214

135 L.R.R.M. (BNA) 2274, 116 Lab.Cas. P 10,278

TELEDYNE INDUSTRIES, INC., doing business as Teledyne Still-Man, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 89-5809, 89-5885.

United States Court of Appeals Sixth Circuit.

Argued April 30, 1990.

Decided Aug. 23, 1990.

William Alexander Blue, Jr., Larry W. Bridgesmith (argued), Constangy, Brooks & Smith, Nashville, Tenn., Alan L. Rolnick, Constangy, Brooks & Smith, Atlanta, Ga., for petitioner/cross-respondent.

Aileen A. Armstrong, Deputy Asso. Gen. Counsel, Howard E. Perlstein, Laurence S. Zakson (argued), N.L.R.B., Office of the General Counsel, Washington, D.C., Martin M. Arlook, Director, Victor McLemore, N.L.R.B., Atlanta, Ga., for respondent/cross-petitioner.

Before MARTIN and BOGGS, Circuit Judges, and JOINER, Senior District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

This controversy stems from the discharge of two employees by Teledyne Industries following a strike at its plant in Cookeville, Tennessee, which manufactures heating elements. The two employees, Oma Stidham and Willie Wheeler, are members of the International Association of Machinists and Aerospace Workers, AFL-CIO, and its affiliated Local Lodge 2553. Stidham and Wheeler participated in the Union's long and frequently hostile strike at the Cookeville plant during 1984 and 1985. After the strike was over, Teledyne discharged Stidham and Wheeler for misconduct during the strike. The National Labor Relations Board found that by discharging Stidham and Wheeler, Teledyne violated the National Labor Relations Act, 29 U.S.C. Secs. 141 et seq. The Board ordered Teledyne to reinstate Stidham and Wheeler with backpay. Teledyne Industries now challenges the Board's order, and the Board seeks enforcement. We enforce the Board's order.

The strike began on February 1, 1984 when the Union's membership rejected a new collective bargaining agreement with Teledyne. Teledyne began hiring permanent replacements for the strikers on February 27, 1984. Striking employees had been tensely anticipating this move by Teledyne, and they allegedly responded with a campaign of intimidation to prevent their replacements from coming to work. Striking workers allegedly blocked entrances and access routes to the plant, threw rocks at the vehicles of replacement workers entering the plant, and threatened replacement workers in their homes and in the community.

After an investigation of these incidents, the Regional Director of the Board issued a complaint on March 22, 1984, alleging many violations of the Act. One allegation was that Stidham, together with other employees, followed nonstriking employees to their homes and threatened them for not joining the strike, in violation of section 8(b)(1)(A) of the Act. 29 U.S.C. Sec. 158(b)(1)(A) (prohibits labor organizations from coercing employees in the exercise of rights guaranteed by the Act). On March 28, 1984, the Regional Director filed a petition in the United States District Court for the Middle District of Tennessee for an injunction under section 10(j) of the Act against Stidham and others to prevent further unfair labor practices. Id. at Sec. 160(j). Before any action was taken on the petition, the parties settled their grievances, and the district court entered an agreed order on April 4, 1984. The agreed order enjoined the Union and others from mass picketing, blocking access to the plant, and other strike misconduct. The district court did not hold a hearing, and the parties waived any findings of fact or conclusions of law.

On August 13, 1984, more controversy ensued when Teledyne began operating a second shift at the plant with more permanent replacements and nonstriking workers. Striking workers allegedly blocked access to the plant again, struck the cars of replacement workers with rocks and other objects, and threatened and assaulted nonstriking employees. In response to a charge filed by Teledyne, the Board filed a second petition with the district court on August 15, 1984, which was amended on August 24, 1984. The second petition sought further injunctive relief and a finding of civil and criminal contempt against various strikers, including Willie Wheeler, for violation of the agreed order entered on April 4, 1984. The second petition alleged that Wheeler had blocked entrances to the plant, hit cars belonging to nonstriking employees, and threatened nonstriking employees. However, the parties again negotiated a settlement. Instead of instituting contempt proceedings, the district court entered another agreed order on August 29, 1984. This order enjoined Wheeler, along with 36 others, from picketing and from coming within 500 feet of the plant. Once again, the district court did not hold a hearing, nor did it make any findings of fact or law regarding the Board's allegations.

The strike wore on until the Teledyne employees voted to decertify the Union in April 1985. With the Union decertified, the strike ended on April 5, 1985. After the strike, Teledyne created a priority list for rehiring former striking employees. Wheeler, Stidham, and three other former striking employees were on the rehiring list, but before they could be rehired, Teledyne terminated them in early 1986 for misconduct during the strike.

The Regional Director of the Board issued a complaint charging Teledyne with committing an unfair labor practice by discharging Wheeler, Stidham, and the other three former employees. An employer commits an unfair labor practice if the employer refuses to reinstate or discharges an employee for exercising rights guaranteed by the National Labor Relations Act, 29 U.S.C. Sec. 157, including participation in a lawful economic strike. 29 U.S.C. Sec. 158(a)(1); NLRB v. Int'l Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972). However, employees may forfeit the Act's protection from discharge through physical violence or other unlawful conduct, if the conduct is sufficiently egregious. Star Meat Co. v. NLRB, 640 F.2d 13, 14 (6th Cir.1980) (per curiam).

Before an administrative law judge could hold a hearing on the Board's complaint, Teledyne filed a motion for partial summary judgment. Teledyne argued that the Board was estopped from alleging that Teledyne had committed an unfair labor practice in discharging Wheeler and Stidham. Teledyne contended that the Board had previously asserted the contrary position that Stidham and Wheeler had committed misconduct under the Act by seeking injunctive relief against Stidham and a finding of contempt against Wheeler. The administrative law judge denied Teledyne's motion and set the case for a hearing.

After an eight-day hearing in the fall of 1986, the administrative law judge found that Teledyne had violated section 8(a)(1) by discharging Wheeler and Stidham, but that the discharges of the other three employees were warranted. ¹ The administrative law judge based its holding on its factual finding that neither Stidham nor Wheeler had engaged in serious strike misconduct. NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The administrative law judge also found that Teledyne did not have a good faith belief that Wheeler had engaged in serious strike misconduct. This finding alone could support a holding that Teledyne had committed an unfair labor practice. Id. at 23, 85 S.Ct. at 172. In regard to Stidham, the administrative law judge found that Teledyne honestly believed, albeit mistakenly, that she had engaged in strike misconduct. The administrative law judge ordered Teledyne to reinstate Stidham and Wheeler with backpay.

A three-member panel of the Board affirmed the decision of the administrative law judge on June 15, 1989. ² The Board held that the discharge of Stidham and Wheeler for misconduct during the strike violated the Act because they were subsequently found not to have engaged in the misconduct. See NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). The Board also affirmed the award of backpay to Stidham and Wheeler, holding that an employer must pay backpay for a discharge in violation of the Act, regardless of whether the employer had a good faith belief that the discharged individual had engaged in misconduct. Id. at 23-24, 85 S.Ct. at 172-73.

We now have three issues for review: the applicability of judicial estoppel, the appropriate award of backpay, if any, and the administrative law judge's decision on the merits.

Claim of Judicial Estoppel

Teledyne contends that the doctrine of judicial estoppel bars the Board from issuing a complaint against Teledyne for discharging Wheeler and Stidham. The doctrine of judicial estoppel forbids a party "from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding." Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 472-73 (6th Cir.1988) (citations omitted). ³ Judicial estoppel is an equitable doctrine that preserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment. See Scararo v. Central R.R., 203 F.2d 510, 513 (3d Cir.1953) (judicial estoppel precludes a party from "playing fast and loose with the courts"). In order to invoke judicial estoppel, a party must show that the opponent took a contrary position under oath in a prior proceeding and that the prior position was accepted by the court. Reynolds, 861 F.2d at 472-73. Teledyne contends (1) that the Board took a position in its petitions to the district court that Stidham and Wheeler engaged in serious misconduct under the Act justifying their dismissal, (2) that the agreed orders constituted judicial acceptance of that position, and (3) that the Board's current order finding that the discharges were not justified under the...