TRW, Inc. v. N.L.R.B., 79-3657

• Decision Date: 24 August 1981
• Docket Number: No. 79-3657,79-3657
• Citation: 654 F.2d 307
• Parties: 108 L.R.R.M. (BNA) 2641, 92 Lab.Cas. P 12,973 TRW, INCORPORATED, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

654 F.2d 307

108 L.R.R.M. (BNA) 2641, 92 Lab.Cas. P 12,973

TRW, INCORPORATED, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 79-3657.

United States Court of Appeals, Fifth Circuit Unit A

Aug. 24, 1981.

As Modified on Denial of Rehearing Sept. 24, 1981.

Rehearing En Banc Denied Oct. 6, 1981.

Hill Farrer & Burrill, Kyle D. Brown, Los Angeles, Cal., Head, Kendrick & Head, Michael Clark Kendrick, Jr., Corpus Christi, Tex., for TRW, Inc.

Elliott Moore, Deputy Associate Gen. Counsel, Steven M. Fetter, N.L.R.B., Washington, D.C., for N.L.R.B.

Petition for review and cross application for enforcement of an order of the National Labor Relations Board.

Before BROWN, GEWIN ^* and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

The National Labor Relations Board found that TRW, Inc., violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(3), during and immediately after a campaign to organize its Corpus Christi, Texas plan. We conclude that the Board's findings are not supported by substantial evidence on the record considered as a whole and, accordingly, deny enforcement of the Board's order.

TRW manufactures and distributes electronic equipment nationwide. The company employs approximately 200 persons at its resistor plant in Corpus Christi. In mid-March of 1978, the International Union of Electrical, Radio, and Machine Workers, AFL-CIO-CLC (Union) began an organizing campaign at the Corpus Christi plant. Meetings were held, union cards were signed and pro-union activities commenced. By the middle of April TRW became aware of the campaign and communicated its opposition to the employees. On April 28, the Union successfully petitioned for an election. The election was held on July 19 and resulted in union certification on that date.

Subsequent to the election, the Union filed several unfair labor practice charges against TRW claiming violations of §§ 8(a)(1), (3), and (4) of the National Labor Relations Act. All violations were predicated on events involving two employees, Henry Miranda and Rosie Garza. The ALJ found that TRW had violated §§ 8(a)(1) and 8(a)(3) by disciplining Garza and Miranda (Miranda was suspended twice and Garza was discharged), and that TRW had violated § 8(a) (1) by interrogating, threatening, and coercing them. The Board basically adopted the ALJ's findings and conclusions, modifying the broad cease-and-desist language in the recommended order and substituting a different notice.

The Board's determination will be sustained if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Delco-Remy Div., General Motors Corp. v. N.L.R.B., 596 F.2d 1295 (5th Cir. 1979). Recognizing the Board's expertise in labor law, we will defer to plausible inferences it draws from the evidence, even if we might reach a contrary result were we deciding the case de novo. N.L.R.B. v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Sturgis Newport Bus. Forms, Inc. v. N.L.R.B., 563 F.2d 1252 (5th Cir. 1977). In assessing the substantiality of the evidence, however, we must consider not only those facts that support the Board's decision, but also those facts and inferences that militate against it. Universal Camera, 340 U.S. 487-88, 71 S.Ct. 463-65.

Section 8(a)(3) Violations

The Board found that the reasons advanced by the company for the discharge of Garza excessive absenteeism and the suspensions of Miranda poor work performance were pretextual, concluding that the real motive for the company's actions was retaliation for their pro-union activities. We conclude that this finding is not supported by substantial evidence.

In a § 8(a)(3) discharge or suspension case, once the employer has articulated a legitimate business reason for his action the burden is upon the general counsel to present substantial evidence that anti-union animus was the "moving cause" of the disciplinary measures. Federal-Mogul Corp. v. N.L.R.B., 566 F.2d 1245 (5th Cir. 1978); Frosty Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617 (5th Cir. 1961). In Florida Steel Corp. v. N.L.R.B., 587 F.2d 735 (5th Cir. 1979), we further clarified the extent of the general counsel's responsibility as being not simply to present some evidence of improper motive, but to find an "affirmative and persuasive reason why the employer rejected the good cause and chose an illegal one." Id. at 742 (quoting from Clothing Workers, Midwest Regional Joint Board v. N.L.R.B., 564 F.2d 434, 440 (D.C.Cir.1977)).

Miranda was employed as a resistor processor on January 25, 1978. From the outset his performance was less than exemplary. The ALJ found Miranda was "not a good employee," and characterized him as "a somewhat intractable and arrogant employee who could be and probably was given to intemperate outburst under criticism." The ALJ also found:

the undisputed evidence shows that Miranda encountered difficulties with superiors over his work performance at least one month before his first brush with the Union. Supervisors Ponce and Casey Eidukonis both testified at some length about difficulties they had with Miranda in the first week of his employment, and the problems they encountered in placing him in a job which he could perform to their satisfaction.

Miranda received a written evaluation on February 25 that ranked him "marginal" in a number of categories, particularly in the area of "attitude." One supervisor noted that Miranda did not pay sufficient attention to the quality of his work, lacked a sense of urgency, and disliked criticism.

There was other evidence of Miranda's difficulty in achieving satisfactory job performance. Entries were made in his personnel file on March 20, April 5, and April 14, 1978, reflecting a continuation of negligent or careless working habits and noting that he spent too much time talking, thereby disrupting the work of others. On April 3, Miranda was counselled by one of his supervisors and warned that he would be discharged if he did not show improvement. Due to his unsatisfactory performance in the resistor division, he was transferred to the shipping department.

Miranda was suspended on two occasions. The first occurred on June 13 when he was ordered by his supervisor, Eidukonis, to return to his regular work station from an area where he had been temporarily located due to repairs. In returning, Miranda began to move a chair taken without permission from the supervisor's office and was ordered by his supervisor to stop. Miranda did not stop, and when accused of disobeying this order insisted that he had not heard the supervisor. The controversy was presented to John Allen, a higher level supervisor, who investigated this incident and suspended Miranda. ¹

Recognizing the dissatisfaction with Miranda's performance, but apparently believing that he could become a productive employee, Allen directed Miranda's immediate supervisors to prepare a specific work schedule, listing tasks to be accomplished and the time allowed for completion. Miranda was assigned the job of inventorying the finished reels in the shipping area. He failed to perform the outlined tasks and committed what the supervisor considered egregious errors in performing the inventory. On June 20, because of these failures, Miranda was suspended for three days.

Garza's employment problems arose out of her attendance record. She had previously been employed by TRW from February to November 1977, during which time she had attendance problems. She was rehired on March 9, 1978 and immediately resumed her lax attitude. In April she was absent four times, once in May, four times in June and five times in July. Garza was aware of the company attendance policy which considered excessive more than two absences in one month. The ALJ found that Garza was aware of this policy and that she had been cautioned orally and in writing, including warnings that if she persisted she would be terminated. On the morning of July 26, 1978, when she failed timely to report for the fifth time in July, she was informed by her supervisor that if she did not work that day "there was nothing they could do for her." She did not appear for work and was discharged. The ALJ found:

The evidence shows that Garza had a poor employment record, that she had received a verbal and a written warning, and that in that month of July, she had already been absent a number of times, which was considered excessive by (TRW's) standards.

In the face of this evidence, the Board found that the reasons given by the company for Garza's discharge and Miranda's suspensions were pretextual ² and that the real reason was anti-union animus. The record does not sustain these conclusions of the Board.

To sustain a finding that a discharge is pretextual, there must be no legitimate business reason advanced by the company. The very nature of a "pretext" is a false or sham reason. When the employer advances a legitimate reason for the discharge, and it is not shown that this reason is untrue, the case cannot be characterized as a pretext case but must be considered a "dual-motive" case. ³ To hold otherwise would permit avoidance of the application of the "moving-cause" analysis which we have consistently held to be the law. The mere characterization of an employer's action as pretextual does not satisfy the responsibility of fully weighing all reasonable bases for that action. Whether the reason for disciplining an employee is truly pretextual is a finding of fact which is subject to judicial review to determine whether it is supported by substantial evidence in the record as a whole and is based on proper legal standards. See Thompson v. Leland Police Dept., 633 F.2d 1111 (5th Cir. 1980).

Were we to assume arguendo that the Board could properly engage in the analysis of the...