National Surface v. NLRB ( 1995 )

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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