National Surface v. NLRB ( 1995 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 94-2048

    NATIONAL SURFACE CLEANING, INC.,

    Petitioner,

    v.

    NATIONAL LABOR RELATIONS BOARD,

    Respondent.


    ____________________


    ON PETITION FOR REVIEW AND CROSS-APPLICATION
    FOR ENFORCEMENT OF AN ORDER OF
    THE NATIONAL LABOR RELATIONS BOARD

    ____________________

    Before

    Cyr, Circuit Judge, _____________

    Aldrich, Senior Circuit Judge, ____________________

    and Boudin, Circuit Judge. _____________

    ____________________


    Nathan L. Kaitz with whom Morgan, Brown & Joy was on brief for ________________ ____________________
    petitioner.
    Richard Cohen with whom Frederick Havard, Supervisory Attorney, _____________ _________________
    Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate ______________________ __________
    General Counsel, Aileen A. Armstrong, Deputy Associate General ______________________
    Counsel, and National Labor Relations Board were on brief for _________________________________
    respondent.

    ____________________

    May 15, 1995
    ____________________



































































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    ALDRICH, Senior Circuit Judge. This is a petition ____________________

    by National Surface Cleaning, Inc. to review and set aside an

    order of the National Labor Relations Board finding that it

    unlawfully discharged employees Humberto Yeppes, Carlos

    Silva, Libardo Quintero, and Jairo and Cesar Duque, in

    violation of Section 8(a)(4) and (1) of the National Labor

    Relations Act, 29 U.S.C. 158(a)(4) and (1). In re National ______________

    Surface Cleaning, 314 NLRB No. 92 (July 28, 1994). The Board ________________

    found National violated the Act by notifying Yeppes on March

    13, 1993 that he would never work for the company again

    because of having filed an unfair labor practice charge

    against it on March 2, 1993, and by discharging the four

    others for assisting or supporting him. National's position

    is that (1) substantial evidence does not support the Board's

    finding as to Yeppes because he was let go prior to its

    learning of the charge, (2) the Board misconstrued section

    8(a)(4) in ruling that it protects the others, and (3)

    ignored evidence indicating National's actions were in no way

    based upon the charge.

    Background __________

    National is engaged in asbestos removal at various

    sites in and around New York. At each site it employs a

    project manager, foremen, and a crew of asbestos removal

    workers, members of the Mason Tenders Union. Typically,

    these workers are hired on a project by project basis. They



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    may be laid off for some time, and recalled when required.

    As of February 1992 the employees in the present

    case were all working at 1411 Broadway under project manager

    Pablo Ortega. On February 21, Ortega laid off the entire

    crew,1 with the exception of five employees who he brought

    to a new project at the Grace building. Some of those laid

    off believed they were not transferred because National

    intended to complete the Grace job with non-union workers.

    On March 2, 1992, Yeppes visited the Grace building

    and thanked Ortega for having employed him at 1411 Broadway,

    but Ortega did not offer him work at the new site. Later

    that day, Yeppes filed an unfair labor practice charge with

    the Board, alleging National laid off its employees at 1411

    Broadway and did not recall them to the Grace site because of

    their union membership. Around March 5 Yeppes and some of

    the others also complained to the union local. On March 6 or

    7, Ortega called Quintero and asked him to contact the group

    who had been laid off from 1411 Broadway and tell them to

    report to work at the Grace building on Monday, March 9.

    Quintero complied, but did not call Yeppes because he

    regarded Yeppes as a supervisor2 and therefore not included

    in the group. On March 9, all except Yeppes began working at


    ____________________

    1. There was some dispute as to whether Yeppes was laid off
    at this time or sometime prior to the others.

    2. Yeppes had at times been employed as a project manager.

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    the Grace site.



















































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    National received Yeppes' Board complaint on March

    9, and Ortega testified to hearing about it by March 10 or

    11. However, a union representative had visited the Grace

    site to check union cards sometime before March 9.3

    On March 12, foreman Javiar Alzate told Quintero,

    Silva and the Duque brothers upon their arrival at work that

    they should not begin and to wait for Ortega. According to

    the employees, when Ortega arrived he accused them of filing

    a complaint against him, which they denied. He claimed to

    have seen Yeppes' name on a complaint but admitted he had not

    seen the others' names. He then told them they were no

    longer needed at the Grace building but might be able to find

    work at 100 Wall Street or 1411 Broadway. He also asked

    Jairo Duque to talk to Yeppes. Ortega testified that he laid

    them off because they had been late to work on March 12 (and

    Jairo Duque had missed several days that week) and because

    they never showed up at 1411 Broadway,4 but it is undisputed

    that the only subject he discussed with them on the morning

    of the 12th was the complaint. Later that day foreman Alzate


    ____________________

    3. The testimony of Jairo Duque suggests that Ortega was
    prompted to recall the laid off workers after the union shop
    steward visited the building.

    4. Ortega testified that he called the Duque brothers on
    Friday evening, March 12, and left a message for them to
    report to 1411 Broadway the next day for a weekend job. They
    claim they were never told. They did go to 100 Wall Street
    on Monday, March 16, but found no one there and, assuming
    Ortega had misled them, never went to the 1411 Broadway site.

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    told two other employees that a group could no longer work

    for National because they had put in a complaint against the

    company. The brother of one of the employees, also a

    foreman, told him the same thing.

    On March 13 Ortega called Yeppes and said he had

    found out about the complaint and was upset that Yeppes had

    come to thank him and then turned around and filed a charge

    against him. Yeppes testified that Ortega then told him he

    would never work for the company again. Ortega denied ever

    saying this. Yeppes in fact has never worked for National

    again, and the other four, despite efforts, have also been

    unable to get themselves rehired.5

    Yeppes ______

    Section 8(a)(4) of the Act makes it unlawful "to

    discharge or otherwise discriminate against an employee

    because he has filed charges or given testimony under this

    Act." N.L.R.A. 8(a)(4), 29 U.S.C. 158(a)(4). The Board

    found Ortega's decision not to recall Yeppes to the Grace

    building along with the others on March 9 did not violate the

    ____________________

    5. Quintero once sought work at 1411 Broadway with a co-
    worker, the co-worker was hired, but Quintero was told by a
    supervisor that he had been instructed not to hire anyone
    involved in the complaint against the company. Another time,
    he had been under the impression that he had been rehired,
    but when he showed up he was informed he was not among those
    recalled because he was involved in the complaint. Ortega
    eventually rehired Silva for the 1411 Broadway weekend job,
    but we decline to disturb the Board's finding that this
    "simply represents . . . that Ortega changed his mind about
    Silva," and had no effect on the March 12 events.

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    Act, but that Ortega's March 13 communication with Yeppes to

    the effect that he would never work for National again

    because he had filed charges against Ortega and the company,

    did. The question here is not whether 8(a)(4) applies, but

    whether Yeppes was effectively discharged on March 13 because

    of the charge, or for unrelated reasons sometime prior to

    National's (or Ortega's) awareness of the charge, as National

    contends.

    National claims the evidence establishes that

    Ortega never intended to recall Yeppes after he was laid off

    sometime in February because he felt he could no longer work

    with Yeppes6 and never intended to hire him again. It

    insists that Yeppes had therefore been discharged well before

    it became aware of his unfair labor practice charge.

    National points to the fact that on March 2 Yeppes sought out

    Ortega and thanked him for having given him work, and to

    Ortega's testimony that he was dissatisfied with Yeppes and

    that it was his practice simply to never recall such an

    employee, rather than to inform him that he is permanently

    discharged, and that all of this conclusively supports the

    inference that Yeppes had been discharged effective prior to

    his ever having filed the charge. It furthermore claims the


    ____________________

    6. National claims Yeppes had repeated difficulty with
    Ortega, in large part because he had once been employed as a
    supervisor and the younger and less experienced Ortega had
    worked under him.

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    Board had no basis for crediting Yeppes' testimony regarding

    Ortega's March 13 threat that Yeppes would never work for the

    company again when Ortega denied ever making it.

    We are satisfied that the Board reasonably resolved

    these credibility issues against National, and its conclusion

    that the March 13 conversation transformed Yeppes' temporary

    lay off into permanent discharge is supported by substantial

    evidence. Universal Camera Corp. v. NLRB, 341 U.S. 474, 71 _______________________ ____

    S.Ct. 456, 95 L.Ed. 456 (1951). The Board found no evidence

    Yeppes had been permanently discharged simply by virtue of

    the fact that he was not recalled along with the others on

    March 9. Further, simply because Ortega had difficulty

    working with Yeppes does not mean other National project

    managers did or would, so even if Ortega himself never

    intended to recall Yeppes this does not mean he had been

    discharged by National. Yeppes had completed jobs

    satisfactorily for other National supervisors, and had been a

    project manager himself prior to working for Ortega. And if

    Yeppes had already been permanently discharged, why would

    Ortega need to tell him on March 13, while castigating him

    for filing charges against him and the company, that he would

    never work for the company again, as the Board found.

    Finally, there was evidence that other supervisors had been

    told not to use any of the employees associated with filing

    the charge, providing the Board with reason to conclude



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    Ortega's threat was neither fictional nor



















































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    idle, and was prompted by and delivered in retaliation for

    Yeppes' having exercised his rights under the Act.

    The Four Other Employees ________________________

    As to the other four employees, the questions are,

    first, whether they were discharged; second, if so, whether

    this was for being late to work and not showing up at a job

    to which they had allegedly been reassigned, as National

    contends, or because National believed they had participated

    in filing charges under the Act, as the Board found; and

    third, whether 8(a)(4) prohibits an employer from

    discharging or otherwise discriminating against an employee

    for believing that he "supported" or "assisted" another in

    relation to filing such charges against it.

    Reasons for the Discharge _________________________

    The Board concluded that the four had been

    discharged, "because they had a reasonable basis for

    believing . . . that the Company no longer desired their

    services," citing Ridgeway Trucking Co., 243 NLRB 1048 (1979) _____________________

    ("the fact of a discharge does not depend on the use of

    formal words of firing," but upon whether the employer's

    words or actions "would logically lead a prudent person to

    believe his tenure had been terminated"). Second, the Board

    found their discharge was in retaliation for the unfair labor

    practice charge, which National believed they "supported" or

    "assisted" Yeppes in filing.



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    National counters that the evidence is clear that

    Quintero, Silva and the Duque brothers were discharged

    because they were late to work on March 12, and did not show

    up at 1411 Broadway on March 14, the job to which Ortega

    testified he had reassigned them. The Board's considered

    assessment of the evidence found it did not support this

    version of events.

    Again, we find the Board's conclusion is based upon

    reasonable resolutions of credibility issues. There was no

    evidence lateness was discussed during Ortega's interrogation

    of the four employees on the morning of March 12, nor is

    there any solid evidence each of them was late on that day.7

    There was evidence, however, that during this meeting Ortega

    was visibly upset by news of the charge, initially accused

    the four men of having filed it, repeatedly questioned them

    about it, specifically requested that Jairo Duque contact

    Yeppes in a manner that suggested, as the Board found, that

    he meant for Jairo to talk Yeppes into dropping the charge,

    and simultaneously informed all four that they were off the

    job. The four denied ever being told to report for work at

    1411 Broadway on Saturday, March 14. Nor is there evidence

    that the supervisor on that project expected them. On the

    contrary, they testified that Ortega told them to try to find ___

    ____________________

    7. In fact, there was testimony that Silva was already
    upstairs suiting up for work when he was told to go back
    downstairs and wait for Ortega to arrive.

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    work elsewhere, at 100 Wall Street or 1411 Broadway. When

    they tried the former, they found no one there and concluded

    they had been, in effect, discharged.

    The Scope of Section 8(a)(4) ____________________________

    National contends in any event that an employer

    cannot be found in violation of 8(a)(4) for taking an

    adverse action against an employee unless that employee has,

    strictly, "filed charges or given testimony under the Act."

    N.L.R.A. 8(a)(4), 29 U.S.C. 158(a)(4), and that the Board

    impermissibly broadened its scope by ruling that it also

    protects supporting or assisting another in relation to the

    filing of charges.

    Section 8(a)(4) should be read broadly in favor of

    the employee, NLRB v. Scrivener, 405 U.S. 117, 122 (1972), ____ _________

    NLRB v. Globe Manufacturing Co., 580 F.2d 18, 20 (1st Cir. ____ _______________________

    1978), and the Board's reading, if permissible, is entitled

    to substantial deference. NLRB v. J. Weingarten, Inc., 420 ____ ___________________

    U.S. 251, 266-67 (1974).

    Scrivener held that 8(a)(4) protected employees _________

    who gave sworn statements to a Board field examiner

    investigating an unfair labor practice charge filed against

    their employer, although they had neither personally "filed

    charges" nor literally "given testimony." 405 U.S. 117, 121.

    The Court found this liberal approach justified by the

    congressional purpose to allow "all persons with information



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    about [unfair labor] practices to be completely free from

    coercion against reporting them to the Board," id. at 121 ___

    (citation omitted), and to protect the integrity of all

    investigative stages of Board proceedings and an employee's

    participation in them, regardless of whether it falls

    somewhere between an actual filing and formal testifying.

    Id. at 122-124. ___

    The Scrivener rationale has led to the _________

    interpretation of 8(a)(4) to protect an employee who merely

    threatens to file charges with the Board, Grand Rapids Die _________________

    Casting Corp. v. NLRB, 831 F.2d 112 (6th Cir. 1987); who ______________ ____

    refuses to testify on the employer's behalf in relation to

    charges filed with the Board, NLRB v. Retail Store Employees ____ _______________________

    Union Local 876, 570 F.2d 586, 590 (6th Cir.), cert. denied, ________________ ____________

    439 U.S. 819 (1978) ("[c]oercing employees to give untrue

    testimony just as surely undermines the integrity of Board

    proceedings as does coercing employees to give no testimony

    at all"); or whom the employer believes has filed or intends

    to file a charge with the Board. First National Bank & Trust ___________________________

    Co., 209 N.L.R.B. 95, enf'd, 505 F.2d 729 (3d Cir. 1974) ___ _____

    (table).

    Here the Board found that Ortega had discharged

    Quintero, Silva, and the Duque brothers because he believed

    "that they had supported Yeppes in relation to the filing of

    the unfair labor practice charge." Strictly, it twice used



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    the verb "support," and twice the verb "assist." We deduce

    from the factual context in which it grounded its finding

    that the Board concluded Ortega was motivated by a belief

    that the men either had or intended to provide not mere

    encouragement or reassurance, but actual, tangible support in

    the prosecution of Yeppes' complaint, i.e., in the form of

    providing corroborative statements or testimony, which Ortega

    knew them to be in a position to do. These men had been part

    of the group allegedly laid off by Ortega because of their

    union membership and stood in the exact same positions vis a

    vis their employer and the Board as did Yeppes, save that

    Yeppes had been the only one to actually sign the complaint.

    The Board reasonably surmised Ortega's dismissal of the men

    to have been prompted by a belief that they had or could

    corroborate Yeppes' allegations to the Board, i.e., that they

    had or might exercise their rights under the Act.

    The order of the Board is therefore affirmed, and ________

    its cross-appeal for enforcement is granted. _______

















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Document Info

Docket Number: 94-2048

Filed Date: 5/15/1995

Precedential Status: Precedential

Modified Date: 9/21/2015