National Labor Relations Board v. Transportation Management Corp. , 674 F.2d 130 ( 1982 )

PER CURIAM.

The National Labor Relations Board seeks enforcement against the Transportation Management Corporation (the “Company”) of an order based upon Board findings that the Company violated § 8(a)(1)¹ and § 8(a)(3)² of the National Labor Relations Act. Several of the findings of § 8(a)(1) violations are adequately supported by the record. The record reveals, for example, that Paterson, a supervisor, spoke to West, an employee and the brother-in-law of Santillo, another employee who was a union activist. In the conversation Paterson referred to Santillo’s union activity, suggested that he (Paterson) was taking it “personal,” noted that he had previously given Santillo favors (such as letting him park his car in Paterson’s yard and giving him time off in the summer to work on another job), and threatened that in the future, “I’ll remember it.” Paterson also told a different employee, Baer, that he would “get even” with Santillo. While Paterson’s motives were the subject of conflicting testimony, there is ample ground for a fact finder to conclude that Paterson’s threats were union-oriented, gave an impression of surveillance, see NLRB v. Rich’s of Plymouth, Inc., 578 F.2d 880 (1st Cir. 1978), and constituted unlawful coercion. NLRB v. A. Lasaponara & Sons, Inc., 541 F.2d 992, 996-97 (2d Cir. 1976), cert. denied, 430 U.S. 914, 97 S.Ct. 1325, 51 L.Ed.2d 592 (1977).

The Board also found the Company’s discharge of Santillo unlawful under both §§ 8(a)(1) and 8(a)(3) of the Act. In making this finding, however, the Board did not conclude that “upon the preponderance of the testimony taken,” it was “of the opinion” that the Company had engaged in an unfair labor practice. National Labor Relations Act § 10(c), 29 U.S.C. § 160(c). Rather, it based its finding of a violation upon a conclusion that the Company “failed to meet its burden of overcoming the General Counsel’s prima facie case by establishing by competent evidence that Santillo would have been discharged even absent his union activities.” (Emphasis added.) While this court has upheld the Board’s practice of imposing upon the Company the burden of neutralizing the implication of sufficient anti-union motive arising from the General Counsel’s prima facie case, Statler Industries, Inc. v. NLRB, 644 F.2d 902 (1st Cir. 1981); NLRB v. Amber Delivery Service, Inc., 651 F.2d 57 (1st Cir. 1981); NLRB v. Cable Vision, 660 F.2d 1 (1st Cir. 1981), it has rejected both explicitly, NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), and implicitly, NLRB v. Amber Delivery Service, Inc., 651 F.2d at 69; NLRB v. Cable Vision, 660 F.2d at 8; NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 n.12 (1st Cir. 1979),³ any effort by the Board to impose a greater burden than this upon the Company, as outside the Board’s statutory authority. We therefore remand this case to the Board for reconsideration under the standard of NLRB v. Wright Line, supra. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Since the Board’s order is based in large part upon Santillo’s discharge, we do not believe that partial enforcement at this time is appropriate.

So ordered.

1 . Section 8(a)(1) provides: “It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7....” 29 U.S.C. § 158(a)(1) (1976). Section 7 provides in pertinent part: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .... ” Id. § 157.

2 . Section 8(a)(3) provides in pertinent part: “It shall be an unfair labor practice for an employer — (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization .... ” 29 U.S.C. § 158(a)(3) (1976).

3 . While Statler Industries did appear to approve the Board’s Wright Line test, which imposes such a burden, it did not focus upon this particular subsidiary issue.