NLRB v. D&D Enterprises ( 1997 )

Filed: September 22, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-2267
(5-CA-22170)
National Labor Relations Board,
Petitioner,
versus
D & D Enterprises, etc.,
Respondent.
O R D E R
The Court amends its opinion filed September 4, 1997, as
follows:
On page 5, first full paragraph, line 6 -- the phrase "to Wil-
liams and Johnson" is corrected to read "to Johnson and Williams."
On page 10, first full paragraph, lines 3-4 -- the sentence is
corrected to end "Johnson on September 9, 1991, and Williams on
September 16, 1991."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 96-2267
D & D ENTERPRISES, INCORPORATED,
d/b/a Beltway Transportation
Company,
Respondent.
On Application for Enforcement of an
Order of the National Labor Relations Board.
(5-CA-22170)
Argued: June 2, 1997
Decided: September 4, 1997
Before RUSSELL and HAMILTON, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
_________________________________________________________________
Petition for enforcement granted in part, vacated in part, and
remanded by published opinion. Judge Hamilton wrote the opinion,
in which Judge Russell and Judge Howard joined.
_________________________________________________________________
COUNSEL
ARGUED: Steven B. Goldstein, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Petitioner. Steven Charles Kahn,
MILLER, CANFIELD, PADDOCK & STONE, P.L.C., Washington,
D.C., for Respondent. ON BRIEF: Frederick L. Feinstein, General
Counsel, Linda Sher, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, Margaret Gaines Neigus,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner.
_________________________________________________________________
OPINION
HAMILTON, Circuit Judge:
The National Labor Relations Board (Board) petitions for enforce-
ment of its order entered against D&D Enterprises, Inc. d/b/a Beltway
Transportation Co. (Beltway). In its order, the Board found that Belt-
way: (1) violated 29 U.S.C. § 158(a)(1), (3) of the National Labor
Relations Act (NLRA) by failing to reinstate economic strikers
Jimmy Williams, David Johnson, and Thaddeus Randall to their pre-
strike positions and, later, by terminating them; and (2) violated 29
U.S.C. § 158(a)(1), (5) by failing to recognize and refusing to bargain
with the Drivers, Chauffeurs & Helpers Local Union No. 639 a/w
International Brotherhood of Teamsters, AFL-CIO (Union). We grant
the petition for enforcement in part, vacate it in part, and remand for
further proceedings.
I.
Beltway is located in Forestville, Maryland and provides bus trans-
portation services on regularly scheduled routes for various public
and private entities in the Washington, D.C. metropolitan area. Belt-
way employs two general varieties of drivers: (1) "regular run driv-
ers," who are assigned to routes on a permanent basis, and (2) "utility
drivers," who fill in for regular run drivers when the regular run driv-
ers are absent and, in addition, pick up any additional runs Beltway
might have on any given day. Regular run drivers are required to call
in to Beltway's dispatch office between 6:00 and 6:30 a.m. when they
are going to be absent on any given day. The runs that become avail-
able because of such an absence by a regular run driver are then
assigned to the utility drivers on a first come, first served basis.1
_________________________________________________________________
1 Notably, both regular run and utility drivers had to report to work by
6:30 a.m.
2
In the summer of 1990, Beltway employee Johnson contacted the
Union. Thereafter, the Union began a campaign to organize Beltway's
employees. Johnson solicited his fellow employees to sign union
authorization cards, and he served as the Union's election observer on
October 5, 1990, when the National Labor Relations Board (NLRB)
conducted an election to determine whether a majority of Beltway's
eligible employees favored unionization.2 The Union won the elec-
tion, and on October 24, 1990, the Union was certified as the exclu-
sive collective bargaining representative of Beltway's drivers and
maintenance employees.
Union officials held approximately twelve bargaining sessions with
Beltway management personnel between November 1990 and August
1991. Johnson and Williams, two of Beltway's drivers, served on the
Union's bargaining committee and attended all of the negotiating ses-
sions. However, on August 8, 1991, no agreement had yet been
reached, and fifteen of Beltway's thirty-four employees began an eco-
nomic strike, protesting Beltway's failure to pay its drivers according
to the size of the vehicles they drove. The strikers included regular
run drivers Williams, Johnson, and Randall.
The strike progressed for the rest of that day and into the following
day. However, shortly after noon on Friday, August 9, 1991, Union
Business Representative James Woodward telephoned Neal Wenger,
Beltway's Vice President of Operations, and told him that the strike
was over and the striking drivers would unconditionally return to
work the following Monday. Further, Woodward told Wenger that the
"wash crew," which cleaned Beltway's buses over the weekend and
included Williams and Johnson, would be available to work that
weekend. Beltway officials informed the Union that the wash crew's
services would not be needed that weekend but did not mention any
change in status or position of any striking employee.
Despite the fact that Beltway knew the strike was already over, on
Saturday, August 10, Wenger offered Williams, Johnson, and Ran-
dall's runs to drivers Kenneth Hall, Danny Jenkins, and Jessie Ben-
_________________________________________________________________
2 The eligible employees included all drivers, maintenance personnel,
and fleet maintenance chiefs employed by Beltway, but excluded all
office clerical staff, professional managers, guards, and supervisors.
3
ton. Hall requested that he not be placed on any route that had been
Williams, Johnson, or Randall's immediately prior to the strike. How-
ever, Wenger told Hall that, beginning on Monday, August 12, he
wanted Hall to drive the IRS Wilson Boulevard route, Johnson's route
before the strike. Hall protested further about driving Johnson's route,
but Wenger and Beltway's President, Jay Davis, assigned the route to
Hall despite his protestations. On that same day, Beltway gave the
routes Williams and Randall had been driving immediately prior to
the strike to Danny Jenkins and Jessie Benton, respectively.
On Monday, August 12, 1991, the day Williams, Johnson, and
Randall returned to work, Hall, Jenkins, and Benton drove their new
routes for the first time. When Williams, Johnson, and Randall
reported to work expecting to resume driving the regular runs they
held immediately prior to the strike, they were told by Beltway offi-
cials that they had been "replaced" because of their participation in
the strike, but that they could remain employed as utility drivers. By
letter dated August 12, Beltway informed its employees that some of
the former strikers would not return to their pre-strike positions and
had been re-assigned because they had been permanently replaced by
other employees.
The former strikers complained to the Union, and on August 12,
Union Business Representative Woodward telephoned Wenger
requesting that the former strikers be reinstated to their pre-strike
positions. Woodward also requested that Beltway resume collective
bargaining negotiations. Wenger referred the matter to Herbert Larra-
bee, Beltway's outside representative. By letter dated August 13,
1991, Larrabee informed the Union that it had been necessary to per-
manently re-assign utility drivers to the jobs formerly held by Wil-
liams, Johnson, and Randall. The letter further stated that while
Williams, Johnson, and Randall continued to remain company
employees, their job classification had been changed to utility driver.
Following the strike, Randall worked as a utility driver until early
September when he was assigned a regular route to drive. However,
Williams and Johnson only worked irregularly throughout the month
of August. Williams and Johnson were sent home on the days that
Beltway officials told them that there were no runs available for them
to drive. Then, in early September, Williams and Johnson began driv-
4
ing trucks for another company, Otis Eastern Service (Otis Eastern).
In explaining their absences to Beltway, Williams told Wenger that
he was temporarily unable to work because of an arthritic condition
and Johnson asked for a leave of absence for "personal reasons." Nei-
ther mentioned anything about driving for Otis Eastern. When Wil-
liams ceased calling in, Wenger called Williams' residence and was
informed that he was at work.
With that in mind, Jim Deiso, Beltway's secretary/treasurer, and
Davis drove to Williams' residence to investigate his work status and
his claims of arthritis. When Williams left his residence, Davis and
Deiso followed him as he drove to Johnson's residence and then went
on to the Otis Eastern facility. On September 9 and 16, respectively,
Beltway sent letters of termination to Johnson and Williams stating
that they were being discharged due to abandonment of work.
On August 26, the Union and Beltway held a negotiating session
but were unable to come up with an acceptable collective bargaining
agreement. The Union and Beltway have not held a negotiating ses-
sion since then.
In late November 1991, a decertification petition was circulated
among Beltway's unionized employees. By signing the petition a
Beltway unionized employee expressed the desire not to be repre-
sented by the Union any longer. The decertification petition was
signed by seventeen eligible Beltway employees, a majority of the
bargaining unit's members at the time.
By letter dated March 27, 1992, the Union requested that Beltway
resume negotiating sessions as soon as possible. Relying on the
November 1991 decertification petition, Beltway responded on April
1, 1992 that it was withdrawing its recognition of, and refusing to bar-
gain with, the Union. Beltway's evidence that the Union no longer
represented a majority of the employees in the original bargaining
unit consisted of the November 1991 decertification petition.
Although three of the decertification petition signatories had left Belt-
way between November 27, 1991 and April 1, 1992, fourteen valid
signatories remained--exactly fifty percent of Beltway's twenty-eight
union-eligible employees.
5
Because the Union believed that Beltway engaged in unfair labor
practices and violated 29 U.S.C. § 158(a)(1), (3) when it failed to
reinstate Williams, Johnson, and Randall to their pre-strike positions
as regular run drivers and because the Union believed that Beltway's
un-remedied unfair labor practices invalidated the decertification peti-
tion under 29 U.S.C. § 158(a)(1), (5), the Union filed complaints
against Beltway on August 23, 1991, and April 7, 1992.
On October 26, 1992, a hearing was held before an ALJ. At the
hearing, the parties presented conflicting testimony regarding the rea-
son why Williams and Johnson only worked irregularly throughout
the month of August following the strike. Beltway claimed that the
two often arrived at work late and, therefore, did not receive runs to
drive because all the available runs had been assigned to other drivers
on a first come, first served basis. As support, Beltway produced the
attendance records for Williams and Johnson showing that they
arrived at work after 6:30 a.m. on the days they did not receive runs
to drive. Beltway also presented evidence which indicated that when
Williams showed up for work on time, he received an average of $88
a day for the runs he drove, approximately the same wages he was
receiving in his pre-strike regular run driver position. Similarly, Belt-
way's evidence was that when Johnson arrived at work on time, he
received, just like Williams, an average of $88 a day for the runs he
drove, approximately the same wages he was receiving in his pre-
strike regular run driver position.
Williams and Johnson themselves testified at the hearing before the
ALJ and gave a very different version of the story. Williams stated
that he arrived at work on time throughout the month of August but
nevertheless did not receive work. Johnson testified that he made
daily early morning trips every weekday to Beltway from August 12
to August 27, and that, except on four days during that period, was
sent home without work even though runs were sometimes given to
drivers who had arrived after he did. In sum, the two testified that
they were essentially forced to take temporary jobs at Otis Eastern
because they could not earn a "livable wage" while working as utility
drivers for Beltway. The ALJ never resolved this conflict because he
determined that the cause of Williams and Johnson's abandonment of
work was irrelevant.
6
Thirteen of the fourteen decertification petition signers also testi-
fied during the hearing before the ALJ. They stated that their signa-
tures on the decertification petition accurately reflected their desire to
rid the company of the Union and that they still did not want to be
part of a union shop. Specifically, the general consensus among the
employees was that the company was too small to have a union and
that they did not want to give their money to a union when it would
not do anything for them anyway. All thirteen testified further that
any adverse action taken towards Williams, Johnson, and Randall had
nothing to do with their decisions to sign the decertification petition.
On June 9, 1993, the ALJ issued his decision, concluding that Belt-
way engaged in unfair labor practices, violating 29 U.S.C.
§ 158(a)(1), (3), when it failed to reinstate Williams, Johnson, and
Randall to their pre-strike positions as regular run drivers even though
those positions remained open on the afternoon of August 9, 1991,
when Beltway officials were informed that the strike had ended. In
addition, the ALJ concluded that, although Williams and Johnson lied
during the hearing regarding the reasons for their absences from work
in September 1991, their abandonment of work at Beltway in Septem-
ber 1991 was irrelevant because no employee misconduct could
supersede the employer's obligation to reinstate a striking employee
to his still available pre-strike position once the strike ended. Further,
the ALJ concluded that Beltway's termination of Williams and John-
son was caused by its failure to properly reinstate the two following
the strike. Finally, the ALJ rejected the testimony of the thirteen
decertification petition signers and concluded that the decertification
petition was invalid because it was tainted by Beltway's unfair labor
practices vis a vis Williams, Johnson, and Randall. Because the ALJ
declared the decertification petition invalid, the ALJ ruled that Belt-
way violated 29 U.S.C. § 158(a)(1), (5) by refusing to recognize and
bargain with the Union.
Accordingly, the ALJ ordered that Williams, Johnson, and Randall
be reinstated to the same runs they were driving for Beltway prior to
the strike, and that they be awarded back pay from August 12, 1991
to the present. The ALJ also ordered that Beltway recognize and
resume negotiating sessions with the Union.
Beltway appealed the ALJ's decision to the Board, noting several
exceptions to the ALJ's findings of fact and conclusions of law. Belt-
7
way also contested the ALJ's award of reinstatement and back pay as
well as the ALJ's order that Beltway recognize and negotiate with the
Union. Specifically, Beltway argued that it had fulfilled its obliga-
tions to Williams, Johnson, and Randall by reinstating them to utility
driver positions which were "substantially equivalent" to the regular
run driver positions they held prior to the strike and that Beltway
could not be forced to reinstate Williams and Johnson because the
two had abandoned their jobs and were lawfully terminated. Finally,
Beltway objected to the ALJ's conclusion that the decertification peti-
tion was tainted and, therefore, could not constitute objective evi-
dence that the Union lacked the majority support of the eligible
employees at Beltway.
The Board agreed with the ALJ in all respects as stated in its deci-
sion and order of October 31, 1995. Specifically, the Board concluded
that: (1) Beltway unjustly terminated Williams and Johnson because
Beltway had never properly reinstated them to their pre-strike posi-
tions, regardless of any misconduct the two may have engaged in
from August 12, 1991 until their respective terminations in September;3
(2) even if Williams and Johnson's misconduct was relevant, their
misconduct was caused by Beltway's unfair labor practices because
Williams and Johnson could not earn a livable wage as utility drivers;
and (3) the decertification petition was tainted per se due to Beltway's
unjust failure to reinstate Williams, Johnson, and Randall and unjust
termination of Williams and Johnson.4 The Board now petitions for
enforcement of its order.
_________________________________________________________________
3 The Board agreed with the ALJ and concluded that, as a matter of
law, it was irrelevant whether Williams and Johnson were consistently
tardy during the month of August following the strike. Accordingly, the
Board, like the ALJ, never resolved the credibility dispute between Wil-
liams and Johnson, and Beltway.
4 Board Member Cohen dissented in part. Cohen agreed with the other
Board members in all respects except that he would have limited back
pay for Williams and Johnson to the date they lied during the hearing
about the reasons for their absences from work at Beltway in September
1991, and he would not have ordered Beltway to reinstate them.
8
II.
Initially, Beltway challenges the Board's determination that it vio-
lated 29 U.S.C. § 158(a)(1), (3) by failing to reinstate Williams, John-
son, and Randall to their pre-strike positions once the strike ended.
Beltway contends it did not violate 29 U.S.C. § 158(a)(1), (3) because
Williams, Johnson, and Randall were reinstated to"substantially
equivalent" positions once the strike ended. This argument has no
merit.
Absent a "legitimate and substantial business justification" an
employer must reinstate an employee to his pre-strike position if that
pre-strike position remains available once the strike ends. See NLRB
v. W.C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977) ("An eco-
nomic striker . . . who unconditionally requests reinstatement is enti-
tled to his former position unless the employer has ``legitimate and
substantial business justifications' for refusing."); see also NLRB v.
Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967) ("If, after the
conclusion of the strike, the employer refuses to reinstate striking
employees, the effect is to discourage employees from exercising
their rights to organize and strike . . . ."); NLRB v. Great Dane
Trailers, 388 U.S. 26, 34 (1967) (economic striker who uncondition-
ally requests reinstatement is generally entitled to pre-strike position);
Newport News Shipbuilding & Dry Dock v. NLRB, 738 F.2d 1404,
1408 (4th Cir. 1984) (employer who refuses to reinstate strikers who
have engaged in a protected strike violates the NLRA unless it can
show "substantial business justification" for action); 29 U.S.C.
§ 158(a)(1), (3). However, an employer is permitted to reinstate an
employee to a "substantially equivalent" position when the employer
has permanently replaced the employee during the strike. See Great
Dane Trailers, 388 U.S. at 34. The prescribed remedy for violating
29 U.S.C. § 158(a)(1), (3) is reinstatement and back pay.
In this case, the Board correctly concluded that Beltway violated
29 U.S.C. § 158(a)(1), (3) when it failed to reinstate Williams, John-
son, and Randall to their pre-strike positions, because their positions
were available when the strike ended. Because Randall "bid" on and
was assigned to a regular run position on September 9, 1991, he is
only entitled to back pay from August 12, 1991, the first work day
following the strike, to September 9, 1991. However, because Randall
9
was not reinstated to the run he was driving before the strike, which
remained open after the strike, he is entitled to reinstatement to that
same regular run driver position. See Fleetwood Trailer, 389 U.S. at
378.
Williams and Johnson were never reinstated to regular run posi-
tions by Beltway. Instead, they were placed in utility driver positions
and terminated by Beltway in September 1991--Johnson on Septem-
ber 9, 1991, and Williams on September 16, 1991. Accordingly, Wil-
liams and Johnson are entitled to back pay at least from August 12,
1991 until the dates of their respective terminations. See 29 U.S.C.
§ 158(a)(1), (3). They may also be entitled to back pay beyond that
date, as well as reinstatement, if Beltway's unjust failure to properly
reinstate them caused them to engage in the misconduct--
abandonment of work--for which they were terminated. See NLRB v.
Rockwood & Co., 834 F.2d 837, 841 (9th Cir. 1987).
III.
That brings us to the next question--did the Board correctly con-
clude that Williams and Johnson are entitled to reinstatement? The
Board concluded that even though Williams and Johnson had alleg-
edly been terminated for a legitimate cause--abandonment of work--
they were still entitled to reinstatement to their pre-strike regular run
driver positions. The Board premised its decision on two alternative
grounds. First, the Board concluded that Williams and Johnson were
entitled to reinstatement regardless of any misconduct on their parts
because Beltway never properly reinstated them to their pre-strike
positions. Second, in the alternative, the Board concluded that Wil-
liams and Johnson's terminations were caused by their placement in
utility driver positions following the strike. In this regard, the Board
reasoned that because there was no guarantee of earning a "livable
wage" as a utility driver for Beltway, Williams and Johnson's aban-
donment of their jobs to drive for Otis Eastern was essentially caused
by their placement in utility driver positions following the strike.
A.
The Board first asserts that no matter what misconduct Williams
and Johnson engaged in leading to their terminations, Beltway is
10
required to reinstate them because reinstatement is the remedy pre-
scribed by 29 U.S.C. § 158(a)(1), (3). Put another way, the Board
contends that employee misconduct can never supersede the employ-
er's obligation to reinstate a striking employee to his still available
pre-strike position once the strike ends. We conclude that the Board's
contention, which creates a per se rule, is contrary to the Board's own
precedent and our Circuit precedent.
In NLRB v. Wright Line, a Div. of Wright Line, Inc., 251 NLRB
1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), the Board first
articulated, and the First Circuit enforced, the following standard: an
employer may properly discharge an employee when that discharge
is unrelated to the employee's union affiliation or union activity. See
662 F.2d at 901. In Wright Line, the Board held that in order to estab-
lish that an employee was unjustly discharged, General Counsel must
establish that protected conduct was a motivating factor in the
employer's decision to discharge the employee. See id. at 901-02.
Only after General Counsel has met that burden does the employer
have to demonstrate that it would have taken the same action, even
in the absence of the protected conduct. See id. at 902.
Our own precedent follows similar reasoning. In Standard Prods.
Co., Rocky Mount Div. v. NLRB, 824 F.2d 291 (4th Cir. 1987), a case
involving the alleged improper termination of an employee for union
organizing activity, we remanded the matter for the Board's consider-
ation of whether the employee's protected activity had anything to do
with his discharge. See id. at 296. The Standard Prods. case is repre-
sentative of a long line of Fourth Circuit precedent which requires
that the Board engage in a burden-shifting analysis similar to that uti-
lized in the Title VII context to determine whether the employer's
unfair labor practices were causally related to the employee's termi-
nation or whether the employee would have been terminated even
absent the union activity. See, e.g., id.; McLean Trucking Co. v.
NLRB, 719 F.2d 1226, 1227 (4th Cir. 1983) (enforcement denied
because Board did not articulate affirmative and persuasive reason for
determining that employee would not have been discharged "but for"
illegitimate reason).
In this case, under Wright Line and Standard Prods., General
Counsel was required to demonstrate that Williams and Johnson's ter-
11
mination was somehow causally related to Beltway's unjust failure to
properly reinstate them to their pre-strike positions before the Board
could order reinstatement. Accordingly, if Beltway's dismissal of
Williams and Johnson was for tardiness and abandonment of work
and Williams and Johnson's tardiness and abandonment of work were
not causally related to Beltway's unfair labor practices, pursuant to
the Board's own Wright Line standard and our circuit precedent, the
Union never established its prima facie case, and Beltway is not
required to reinstate Williams and Johnson. See Earle Indus., Inc. v.
NLRB, 75 F.3d 400, 405 (8th Cir. 1996) (Board cannot properly order
reinstatement when employee misconduct which resulted in termina-
tion is unrelated to protected activity).
Our decision is not inconsistent with David R. Webb Co., Inc. v.
NLRB, 888 F.2d 501 (7th Cir. 1989), a case heavily relied upon by
the Board. In David R. Webb, the employer permanently filled several
positions during an economic strike and, thus, the striking employees
were validly placed on a preferential recall list. See id. at 502. When
three complaining former employees reached the top of the list, they
were placed into a lower level position than the pre-strike position
any of the three had held. In addition, it was a position that none of
the three had ever performed before, and a position for which none
of them had ever been trained. See id. Not surprisingly, the three per-
formed poorly in their new jobs, and they were discharged for that
poor performance. See id. Moreover, they were not placed back on the
recall list. See id. The Board concluded that all three were essentially
"set up" for failure and were, therefore, entitled to be placed back on
the recall list (i.e., reinstated) because their employer had never dis-
charged its obligation to properly reinstate them following the strike.
See id. at 508, 510. The Seventh Circuit agreed and held that the com-
pany was required to reinstate the three employees to their pre-strike
jobs or to "substantially equivalent" positions. See id. at 510.
The Board reads David R. Webb as requiring reinstatement in this
case even though Williams and Johnson's tardiness and abandonment
of work may have been unrelated to Beltway's unfair labor practices.
At least one court agrees with the Board's interpretation of David R.
Webb. See NLRB v. Ryder Sys., Inc., 983 F.2d 705 (6th Cir. 1993)
(holding that employee was entitled to reinstatement even though the
employee was terminated for conduct unrelated to his union activities
12
(gross insubordination) because employee was wrongfully reinstated
without his seniority following his participation in a sympathy strike).
We find the Board and the Sixth Circuit's reading of David R. Webb
unpersuasive. First, the David R. Webb court was not confronted with
the question presented here--whether an employee can be discharged
when the cause of his termination is unrelated to the company's
unfair labor practices. The court in David R. Webb recognized as
much. See 888 F.2d at 510 ("The NLRB's order in this case, however,
directs reinstatement to the employees' pre-strike positions or posi-
tions of substantial equivalent of those positions, and these are posi-
tions for which the employees' inability to perform in the lower-level
positions is not related."). Second, accepting the Board's view would
run afoul of our decision in Standard Prods. which requires a show-
ing that the termination was caused by the company's unfair labor
practices. Third, our position is consistent with the balance between
the rights of employees and employers that Congress attempted to
achieve in enacting the NLRA. Section 158(a) provides that an
employee shall not be discriminated against for engaging in union
activities. On the other hand, § 160(c) provides that an employer can-
not be required to reinstate an employee who has been properly termi-
nated for cause. The Board's proposed rule, which would require the
reinstatement of an employee who engaged in misconduct unrelated
to the employer's unfair labor practices, eviscerates the employer's
rights as recognized in § 160(c). Our rule, however, preserves the bal-
ance contained in the NLRA by requiring that the Board demonstrate
some causal nexus between the employer's unfair labor practices and
the reason for the employee's termination before the Board can order
the employee's reinstatement.
B.
We now turn to the question of whether there was a causal connec-
tion between Beltway's unfair labor practices and Williams and John-
son's abandonment of work. According to the Board, Williams and
Johnson's abandonment of work was caused by Beltway's failure to
reinstate Williams and Johnson as regular run drivers following the
strike. More specifically, the Board argues that Williams and John-
son's abandonment of work was caused by their inability to earn a
"livable wage" as utility run drivers.
13
In considering the Board's argument that Beltway's misconduct
caused Williams and Johnson to abandon work, we note, first, that
arriving at work by 6:30 a.m. is a requirement for all Beltway drivers
--both regular run drivers and utility drivers. The only difference
between the two positions is that regular run drivers are guaranteed
runs if they arrive at work on time, while utility drivers receive runs
on a first come, first served basis. We note, second, that Beltway's
evidence shows that Williams and Johnson received runs every day
they arrived at work on time following the strike. According to Belt-
way, all Williams and Johnson had to do in order to earn a livable
wage as a utility driver was to comply with a requirement of all driv-
ers by arriving at work on time. Thus, if Beltway's evidence is cred-
ited, their failure to earn a livable wage was attributable to their
failure to arrive at work on time, not to their status as utility drivers
and, consequently, not to Beltway's misconduct in reinstating them
into utility driver positions.5 As noted earlier, however, Williams and
Johnson assert that they did arrive at work on time and that they sim-
ply were not given sufficient runs to enable them to earn a livable
wage.
Because arriving at work on time is a requirement for all Beltway
drivers, Beltway can only be said to have caused Williams and John-
son's abandonment of work if Williams and Johnson arrived at work
on time and were still unable to earn a livable wage. Both the ALJ
and the Board, however, declined to resolve the parties' factual dis-
pute concerning whether Williams and Johnson arrived at work on
time yet were unable to earn a livable wage or, alternatively, whether
their failure to earn a livable wage was the direct result of their failure
to arrive at work on time. Because resolution of the causation issue
turns on resolution of this factual dispute, we remand this issue for
further proceedings consistent with this opinion.
IV.
Finally, we must address the question of whether Beltway's unfair
labor practices "tainted" the decertification petition to such a degree
that the petition cannot be relied upon to show the Union lacks the
_________________________________________________________________
5 Beltway's evidence also shows that Williams and Johnson had been
reprimanded for arriving at work late as regular run drivers.
14
support of a majority of Beltway's eligible employees. A union's
majority status is irrebuttably presumed to continue for a one-year
period following certification. See NLRB v. Curtin Matheson Scien-
tific, Inc., 494 U.S. 775, 777-78 (1990). Thereafter, the presumption
of majority status becomes rebuttable with the burden of proving lack
of majority support on the employer. See id. at 787. Here, the Union
was certified on October 5, 1990 and the decertification petition did
not begin circulating amongst Beltway's unionized employees until
November 25, 1991. Accordingly, the one year period of irrebuttable
majority support had passed when the decertification petition was cir-
culated.
Once the period of rebuttability begins, the employer must show
that there is a good faith doubt regarding majority support founded on
a sufficient objective basis in order to meet its burden. See Terrell
Mach. Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir. 1970). Unless the
employer establishes such a good faith doubt, an employer violates 29
U.S.C. § 158(a)(1), (5) by withdrawing recognition from and refusing
to bargain with a certified union. See id. at 1090-91.
A petition signed by at least half of a bargaining unit's members
in which they indicate that they do not wish to be represented by the
union ordinarily constitutes sufficient objective evidence to rebut the
union's presumed majority status. See NLRB v. Blevins Popcorn Co.,
659 F.2d 1173, 1183 n.56 (D.C. Cir. 1981); see also AMBAC Int'l,
Ltd., 299 NLRB 505, 1990 WL 132816, at *3 (1990) (evidence that
exactly half of bargaining unit's employees no longer support union
sufficient to discharge employer's burden that union no longer enjoys
majority support). If, however, General Counsel presents evidence
which establishes that the union's decline in support is attributable to
the employer's misconduct, the employer's "good faith" defense to
the withdrawal of recognition fails. See Sullivan Indus. v. NLRB, 957
F.2d 890, 897-98 (D.C. Cir. 1992). When General Counsel attempts
to rebut an employer's good faith belief of lack of majority union sup-
port, a multi-factored analysis must be undertaken to determine the
validity of the employer's belief. See Master Slack Corp., 271 NLRB
78, 1984 WL 36573 (1984); Olson Bodies, Inc., 206 NLRB 779(1973). These factors include: (1) the length of time between the
unfair labor practice and the decertification petition; (2) the nature of
the employer's illegal acts; (3) any possible tendency to cause
15
employee disaffection from the union; and (4) the effect of the unlaw-
ful conduct on employee morale, organizational activities, and mem-
bership in the union. See Master Slack, 1984 WL 36573, at *10.
In this case, Beltway presented evidence of support for decertifica-
tion in the form of a decertification petition signed by exactly half of
the unionized employees. The Board rejected the decertification peti-
tion, however, stating that the ALJ found that Beltway's misconduct
was aimed at undermining employee support for the Union and, thus,
no reliance could be placed on the decertification petition. The Board
reached this conclusion notwithstanding the fact that many of Belt-
way's eligible employees professed ignorance of their employer's
misconduct, see Hearst Corp., San Antonio Light Div., 281 NLRB
764, 765 (1986), aff'd, 837 F.2d 1088 (5th Cir. 1988); see also
Hancock Fabrics, d/b/a Fabric Warehouse, 294 NLRB 189 (1989),
aff'd, 902 F.2d 28 (4th Cir. 1990), and without applying the multi-
factored analysis required by Board precedent when determining
whether the employer's good faith belief that the union lacks majority
support is valid. Particularly in light of the absence of any evidence
suggesting a connection between employee disaffection from the
Union and Beltway's misconduct with regard to Williams, Johnson,
and Randall and in light of the testimony suggesting that many of the
petition's signatories were unaware of Beltway's misconduct, at a
minimum, the Board should have applied its own multi-factored anal-
ysis in assessing the validity of Beltway's good-faith defense to its
withdrawal of recognition of the Union, rather than dismissing Belt-
way's defense out of hand. Because the Board failed to properly
assess the validity of Beltway's defense, a remand is necessary.
In addition, we must remand for reconsideration of this question
because resolution of this issue depends, in part, on the Board's reso-
lution of the evidentiary dispute concerning the reason Williams and
Johnson were unable to secure work as utility drivers following the
strike. Simply put, if after resolving the evidentiary dispute between
Beltway and Williams and Johnson, the Board orders that Williams
and Johnson must be reinstated, the numerical calculus will change.
There will be thirty Beltway employees eligible for the bargaining
16
unit and only fourteen signatures on the decertification petition.
Accordingly, the Union will still enjoy majority support.6
V.
For the reasons stated herein, we grant that portion of the petition
for enforcement which: (1) determines that Beltway violated 29
U.S.C. § 158(a)(1), (3) when it replaced Williams, Johnson, and Ran-
dall as regular run drivers after the strike and gave them utility driver
positions; (2) ordered Beltway to pay Randall back pay from August
12, 1991 until the date of his reinstatement to a regular run driver
position and to reinstate Randall to the regular run he held immedi-
ately prior to the August 1991 strike; and (3) ordered Beltway to
award Williams and Johnson back pay from August 12, 1991 until the
date of their respective terminations. We vacate that portion of the
Board's order which: (1) ordered the reinstatement of Williams and
Johnson; and (2) ordered Beltway to recognize and bargain with the
Union due to the invalidity of the decertification petition. We also
remand the matter so the Board can resolve the evidentiary dispute
_________________________________________________________________
6 Notably, if the Board determines on remand that Williams and John-
son should be reinstated, the very fact of their unjust termination might
render the decertification petition invalid even without the change in the
number of eligible employees. In that case, there was an ongoing unfair
labor practice when the decertification petition was signed in late
November 1991 (i.e., Williams and Johnson had been unjustly termi-
nated and their reinstatement was required). An ongoing unfair labor
practice of that magnitude could cast sufficient doubt on decertification
petition so as to make it invalid. See NLRB v. Williams Enters., Inc., 50
F.3d 1280, 1288 (4th Cir. 1995) (company may not avoid duty to bargain
with union unless it can demonstrate that its unfair labor practices did not
cause the union's loss of support); Columbia Portland Cement Co. v.
NLRB, 979 F.2d 460, 462-65 (6th Cir. 1992) (employer's failure to rein-
state has long lasting effect on validity of decertification petition). In
contrast, Beltway's technical violation of failing to reinstate Randall
could not reasonably have led to any employee disaffection from the
Union especially considering: (1) the lack of any evidence in the record
that the regular run Randall began driving for Beltway in September
1991 was materially different from the regular run he was driving before
the August 1991 strike, and (2) the testimony of the thirteen decertifica-
tion petition signatories.
17
between Beltway, and Williams and Johnson regarding the reason
Williams and Johnson did not receive runs to drive following the
August 1991 strike. The Board may then consider what effect, if any,
its resolution of this dispute has on the reinstatement and back pay
issues for Williams and Johnson, and the validity of the decertifica-
tion petition.
PETITION GRANTED IN PART, VACATED IN PART,
AND REMANDED
18