Union-Tribune Pub. Co. v. N.L.R.B.
| Decision Date | 10 January 1994 |
| Docket Number | Nos. 92-1978,I,UNION-TRIBUNE,CL,AFL-CI,92-2348,No. 95,95,s. 92-1978 |
| Parties | 143 L.R.R.M. (BNA) 2865, 143 L.R.R.M. (BNA) 3013, 62 USLW 2131, 125 Lab.Cas. P 10,774 PUBLISHING COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and San Diego Newspaper Guild, Localof the Newspaper Guild,ntervening Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
E. Andrew Norwood, Howard M. Kastrinsky, King & Ballow, Nashville, TN, Paul H. Duvall (argued), King & Ballow, San Diego, CA, for petitioner/cross-respondent.
Charles P. Donnelly, Jr., John C. Truesdale, John Fawley (argued), N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, William M. Bernstein, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Robert R. Petering, N.L.R.B., Counsel for the Gen. Counsel, San Diego, CA, Victoria E. Aguayo, N.L.R.B., Region 21, Los Angeles, CA, for respondent/cross-petitioner.
Richard D. Prochazka, San Diego, CA, for intervening-respondent.
Before CUDAHY, FLAUM, and MANION, Circuit Judges.
The central issue in this case is whether substantial evidence supports a decision by the National Labor Relations Board (the Board) that Union-Tribune Publishing Company (Union-Tribune) fired Nancy Tetrault from her job as a district circulation manager because of her union activities. Although the question is close, we conclude that the Board's order is supported by substantial evidence, and we therefore enforce it.
We begin by presenting the facts as found by the Administrative Law Judge (ALJ). In 1979, Nancy Tetrault began working for Union-Tribune, a publisher of two daily newspapers in San Diego County, California, as a relief district manager in the circulation department. After serving in several managerial positions in other districts, Tetrault requested a transfer to the manager's post for District 128. The job of a district manager is to coordinate daily delivery of the newspaper within a discrete geographic area. Among her tasks are hiring route carriers who perform the deliveries, collecting subscription payments, and ensuring that each customer receives a paper every day. Because District 128 was located in a low-income, crime-ridden area, its manager had to overcome many problems such as customers who were unavailable for collection, frequent service errors, and unreliable carriers. Tetrault nevertheless wanted the job, and she received it in November, 1985.
In December, 1987, Tetrault became a member of the executive committee of her union, the San Diego Newspaper Guild. Union-Tribune and the Guild began negotiations in March, 1988 for a new collective-bargaining agreement. Tetrault herself became a member of the bargaining committee and took several days off from work to attend negotiation sessions. In June, Tetrault received her review for the first quarter of 1988. The report documented poor performance. In particular, customer complaints were 50% higher than the approved level for her district, which was already set at twice the level of any other district. No disciplinary action was taken against Tetrault at the time, but she was warned that she must do better. As a result of this review and her perceived need to refocus her energies on her work, Tetrault subsequently withdrew from the negotiating committee. Coastal Circulation Manager Richard Julian told her shortly thereafter that he was "glad that she had her priorities in the right place."
Tetrault's troubles grew serious during the summer of 1988. She had planned to take an extended vacation, and prepared a lengthy list of assignments for Glen Harms, the vacation relief manager for her district. Although Union-Tribune maintains that Harms successfully completed all his assignments but one, the ALJ found that the district was in "considerably worse shape" when Tetrault returned. Toward the end of Tetrault's vacation and continuing for two weeks afterward, a television documentary entitled "The Non-Union Tribune" aired ten times on local cable channels. Produced by local college students and taking an unabashedly pro-union stance, the program portrayed Union-Tribune's efforts to break the Guild during their collective-bargaining negotiations. Tetrault was featured prominently in the program, especially in one scene that showed her delivering a speech to a cheering Guild audience and denouncing Union-Tribune and its "carpetbagging" law firm. Tetrault testified that after her return Division Manager Don Resch (Tetrault's immediate supervisor) told her that he had seen her on the program and that he thought "everyone" had seen her.
In September, Tetrault received her performance review for the second quarter of 1988. Because she failed to submit on time her route profit breakdowns (RPBs)--reports detailing payments made to carriers and profits or payments due to the company--she was suspended for one day. In what they described as an attempt to give her a "fresh start," Resch and Julian offered Tetrault the opportunity to transfer to District 122, the best-performing district in the system. She accepted. Her transfer would become final, however, only upon completion and submission of all the outstanding RPBs for District 128. That task proved far more difficult than anticipated, due in large part to Tetrault's additional responsibility during that period for District 122. About this time, Division Manager Wesley Bates told Tetrault that the union shop was on its way out, and that "[i]t won't exist when we're done with this negotiation." Tetrault's deadline for submitting the July through September RPBs was extended several times in October. The RPBs she eventually submitted for July and August were not signed by the carriers, as they should have been.
Meanwhile, two Union-Tribune officials had begun investigating complaints by District 128 carriers that they had not been paid. These officials also looked into accounting documents, timecards, and cash turn-in sheets that showed irregularities. As a result of their discoveries, Union-Tribune held a meeting with Tetrault on October 28 to discuss her handling of various financial matters; according to Union-Tribune, Tetrault admitted at the meeting to using collections from prior months to pay certain carriers and commingling collections from different paper routes. On November 1, Tetrault was indefinitely suspended for gross misconduct pending further investigation. After another meeting with Union-Tribune on November 11, she was formally fired effective November 17.
The Guild filed two unfair labor practice charges against Union-Tribune and requested an explanation of the specific reasons why Tetrault was discharged. On January 13, 1989, Union-Tribune sent the Guild a ten-page letter listing some eighty-two reasons for her firing. The ALJ conducted a lengthy hearing on the charges and concluded that Union-Tribune had violated sections 8(a)(3) and (a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(a)(3) and (a)(1). 1 The ALJ gave strong weight to Tetrault's testimony, calling her "an eminently credible individual" and finding that she was a conscientious employee who applied all her effort to tackling the virtually insuperable problems of District 128. The ALJ examined in great detail each of Union-Tribune's purported grounds for discharging Tetrault. Contrary to their allegations, he concluded that there was no convincing evidence that she had stolen money or engaged in any financial misconduct. In fact, the ALJ believed that the company's investigation was a sham, undertaken so that Union-Tribune could "rid itself of an ardent union activist." The ALJ placed heavy emphasis on the fact that Union-Tribune never informed Tetrault of the specific charges against her so that she could rebut them, either at the October 28 or November 11 meetings. Union-Tribune's failure to allow Tetrault to defend herself, the ALJ determined, by itself showed that its offered reasons for firing her were pretextual.
On review, the Board acknowledged two shortcomings in the ALJ's decision. First, it was incorrect for the ALJ to infer an improper motive for Tetrault's discharge from Union-Tribune's denial of information about the charges against her. Grievances had been filed in August and September that Union-Tribune was discriminating against Tetrault in violation of section 8(a)(3). There is no right to prehearing discovery for a pending section 8(a)(3) charge, see, e.g., WXON-TV, 289 N.L.R.B. 615, 617-18 (1988), and furnishing information about the November suspension and discharge would have provided information about the earlier pending charges as well. Union-Tribune was thus acting within its rights when it rejected Tetrault's requests.
Second, and more seriously, the ALJ never formally determined that antiunion animus had motivated Union-Tribune's actions against Tetrault, a prerequisite for finding a violation of the NLRA. The ALJ concluded that the reasons offered for Tetrault's discharge were pretextual, but never found that antiunion animus was the real reason for the company's action. Nevertheless, the Board cited five pieces of evidence in the ALJ's decision that supported an inference of animus. (1) Union-Tribune's division manager told Tetrault, while she was serving on the Guild's bargaining committee, that "the union shop was out and it would not exist at the end of negotiations." (2) A meeting was held for Union-Tribune managers to watch a videotape broadcast of the documentary during which Tetrault chastised Union-Tribune management. (3) Richard Julian told Tetrault that her decision to resign from the bargaining committee showed that she had gotten her priorities straight. (4) The relationship between the bargaining parties was at a forty-year low. (5) The Guild had...
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