W.C. McQuaide, Inc. v. N.L.R.B.
| Decision Date | 16 January 1998 |
| Docket Number | No. 97-1068,97-1068 |
| Citation | 133 F.3d 47 |
| Parties | 157 L.R.R.M. (BNA) 2221, 328 U.S.App.D.C. 184, 134 Lab.Cas. P 10,106 W.C. McQUAIDE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Michael A. Taylor argued the cause for petitioner, with whom Celeste M. Wasielewski was on the brief.
Marion Griffin, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on the brief. John D. Burgoyne, Assistant General Counsel, entered an appearance.
Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Petitioner W.C. McQuaide, Inc. seeks review of a decision and order of the National Labor Relations Board finding that the company had violated sections 8(a)(3), (4), and (1) of the National Labor Relations Act 1 by discriminating against sixteen employees because they engaged in union activity, and against three employees because they initiated or testified in Board proceedings. The company contends that the Board failed to give appropriate consideration to the company's Wright Line 2 defenses to the section 8(a)(3) allegations, which it argues exonerated it for acting against employees who would have been subjected to discipline regardless of their union activities. The company maintains that the administrative law judge ignored evidence, ruled that several employees had been constructively discharged although the complaint had not included such an allegation, and made credibility determinations that were unsupported by the record. Because we conclude, with one exception, that the company's challenges to the Board's decision and order are unpersuasive, we grant the petition in part and deny the petition in part. Conversely, we grant the Board's cross-petition for enforcement of its order in part and deny it in part.
McQuaide is a family-owned and operated interstate trucking and warehousing business. The company has successfully resisted attempts to unionize its employees in the past, and was found to have engaged in unfair labor practices on one prior occasion. The instant charges arose out of McQuaide's most recent efforts to maintain a union free shop. The company does not contest the Board's finding that it violated section 8(a)(1) by repeatedly threatening reprisals and discharges against employees for supporting the union, by coercively interrogating employees about their union activities, by creating the impression that employee's union meetings were under surveillance, by preventing one employee from wearing a union insignia and passing out union cards, and by telling employees that a wage increase depended on their defeat of the union or withdrawal of unfair labor practice charges. Therefore, we summarily enforce the Board's order with respect to these charges. See Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.Cir.1997); Intl. Union of Petroleum & Indus. Workers v. NLRB, 980 F.2d 774, 778 n. 1 (D.C.Cir.1992).
As to the remaining charges, we need only address two because the company's other challenges are met by sufficient evidence in the record to support the Board's findings. 3 Those charges involve discharged McQuaide employees Tom Boyes, Jack Boyes, and Dale Salsbury. 4
An employee's discharge violates section 8(a)(3) when the employee's union related activities were a motivating factor in the employer's decision. See MECO Corp. v. NLRB, 986 F.2d 1434, 1436 (D.C.Cir.1993). Under the Wright Line test, the General Counsel of the Board must first make a prima facie showing of the employer's unlawful motivation. As an affirmative defense, the employer then bears the burden of demonstrating "that it would have taken the same action even if the employee[ ] had not engaged in the protected activity." Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334, 1339 (D.C.Cir.1995). McQuaide does not contend that the General Counsel failed to meet its burden of proving that McQuaide had a discriminatory motive for discharging Jack Boyes, Tom Boyes, or Dale Salsbury. Rather, the company maintains that the ALJ and the Board failed to give adequate consideration to its Wright Line defenses, and that the findings that the company's proffered reasons for the discharges were merely pretextual were not supported by substantial evidence.
Jack Boyes worked at McQuaide's Richfield, Ohio satellite facility with his father Tom Boyes and another employee, Dale Salsbury. On the night of August 12-13, 1992 Jack Boyes was scheduled to drive a "shuttle" truck from the Richfield terminal to McQuaide's headquarters in Johnstown, Pennsylvania, but failed to report for work. He did not notify the night dispatcher of his absence and apparently never contacted the company again. The dispatcher attempted to contact Jack Boyes by telephone and radio when he realized that Jack was not coming in, but was unsuccessful. On August 14, the company's vice president of operations informed Tom Boyes that Jack Boyes had been terminated because he had never called in to work.
At the hearing before the administrative law judge ("ALJ"), Jack Boyes testified that he had notified the dispatcher of his absence and that he had also telephoned the vice president to explain that he had been ill that night. He claimed that the vice president told him that he was fired because of his excessive absenteeism. The ALJ, however, discredited this testimony because it was not corroborated by the company's telephone records and contradicted the "frank" testimony of the dispatcher. Nevertheless, the ALJ concluded that McQuaide terminated Jack's employment "in retaliation for his active role in the Union's organizing drive." The ALJ based his finding on the shifting explanations offered by the vice president. Despite his initial contention that he fired Jack Boyes on August 13 for failing to report for work, the vice president testified that the company assumed Jack Boyes had abandoned his job after failing to hear from him for ten days. Because of these differing explanations, the ALJ concluded that the company's explanation was merely pretextual. The Board affirmed the ALJ's finding without comment.
In addition to the vice president's testimony, the company had offered evidence that it had discharged twenty-three other employees for failing to call in, consistent with a company policy requiring all drivers to contact the dispatcher if they are unable to work. The ALJ did not refer to this evidence in making his findings. Nor does the record permit the court to conclude that other evidence sufficed to refute this evidence without explanation. Although the company's description of its action with regard to the twenty-three employees is not as consistent as it suggests, inasmuch as its vice president admitted that some employees were given additional assignments after their first infraction of company policy, it remains unclear whether in Jack Boyes' case the firing was entirely pretextual. 5 We agree with the company that whether Jack Boyes quit by not reporting for work or was discharged for failing to report to the dispatcher is merely a matter of semantics. Hence, the ALJ's reliance on the company's shifting explanations, without more, is flawed.
Therefore, we remand this issue to the Board for further consideration of all of the evidence presented by McQuaide in mounting its Wright Line defense, including the evidence of past company practice. To rebut the evidence of McQuaide's unlawful motivation, the company still bears the burden of proving that it would have discharged Jack Boyes even if he had not engaged in union activities, see Southwest Merchandising Corp., 53 F.3d at 1339, and we take no position on the correct understanding of the company's evidence nor whether it has met its burden.
On February 18, 1993, McQuaide discharged the driver it had hired to replace Jack Boyes, leaving Tom Boyes and Dale Salsbury as the only drivers at its Norton, Ohio terminal. 6 The following morning, Tom Boyes called McQuaide's dispatcher to learn if there was any work for him that day. 7 The dispatcher told Tom Boyes that there was not, and that he did not know "what ... was going on," but instructed Tom to call the night dispatcher later in the day to see what had developed. Similarly Dale Salsbury telephoned the dispatcher on the evening of Friday, February 19 and was informed that the company "was not sending any freight out" to Norton. He was never told to check for work the following Monday or at any time thereafter. According to McQuaide's records, both Tom Boyes and Dale Salsbury were scheduled to work on Monday, February 22 but never reported in to the company. McQuaide's vice president testified that on the morning of February 23, he instructed the dispatcher to call the two drivers at their homes. Specifically, he told the dispatcher "Let's make sure we make an attempt to get a hold of these guys, so they can't say we didn't try to call them." The dispatcher testified that he left a message with an unidentified female at Tom Boyes' home and a message on Dale Salsbury's answering machine, asking each driver to return his call. Neither driver received these messages; nor did the company ever make another effort to contact them. The only remaining communication between the company and the drivers was a letter of termination, dated February 24, in which the company informed each driver that his record had been marked "Quit without notice."
The ALJ and the Board rejected the company's defense that the two drivers had abandoned their jobs and concluded that McQuaide had "constructively discharged" Tom Boyes and Dale Salsbury on February 19 and 20, respectively, by withholding work from them. The ALJ considered...
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