Ruben F. Lima v. National Labor Relations Board, Keco Industries, Inc., Intervenor ( 1987 )

Opinion for the Court by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge WILLIAMS.

HARRY T. EDWARDS, Circuit Judge:

In January of 1982, the petitioner, Ruben F. Lima, filed an unfair labor practice charge with the General Counsel of the National Labor Relations Board (“NLRB” or the “Board”), accusing respondent Keco Industries, Inc. (“Keco”), his employer, of violating sections 8(a)(1) and (3) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (3) (1982), by discharging him in retaliation for having engaged in protected union activities.' The General Counsel investigated the charge and issued a complaint against Keco. After a hearing, the Administrative Law Judge (“AU”) issued his findings of fact, conclusions of law, and recommendations on January 19, 1983. Keco Indus., Inc., 276 N.L.R.B. No. 167 (1983) (“ALJ Decision ”). The AU found that, in discharging Lima, Keco had committed an unfair labor practice, and he therefore recommended that Lima be reinstated with back pay. Id. at 24-26. In a terse opinion, the Board rejected the AU’s recommendations and dismissed the complaint. Keco Indus., Inc., 276 N.L.R.B. No. 167 (1985) (“Board Decision ”). Lima now seeks review of the Board’s decision.

For the reasons hereinafter given, we grant the petition for review and remand for further consideration.

I. Background

The relevant facts are undisputed. Keco employs about three hundred people at its military equipment manufacturing plant in Cincinnati, Ohio. In September of 1981, after Keco and the bargaining representative of its two hundred production workers failed to reach agreement in their contract negotiations, the production workers went on strike. Most of the striking workers returned to work after a new collective bargaining agreement was executed in November of 1981. However, Keco discharged four of the strikers, including Lima, for engaging in alleged misconduct during the strike. ALJ Decision at 2.

Lima’s discharge was based exclusively on the following incident. On September 26, 1981, at about 11:15 a.m., an independent security guard sitting in a company van outside the back gate¹ of Keco’s plant saw Lima walking along railroad tracks that paralleled Keco’s property about seventy-five feet or more from where the guard was sitting. The guard observed “a small caliber pistol sticking out of [Lima’s] belt line,” and called his lieutenant to report a man “on the tracks with a gun.” At the hearing before the AU, the guard testified that he “think[s]” he was “sure” that he saw a pistol, but that it was “possible” that he was wrong. Id. at 21.

By the time the lieutenant and a third guard had reached the back of the plant, Lima had disappeared down the tracks. The lieutenant and the third guard left, but received another radio call shortly thereafter and returned to find Lima and an unidentified individual walking back along the tracks toward the plant. From about thirty to forty feet, the lieutenant saw in Lima’s waistband something that “appeared to be a revolver” and which the lieutenant believed to be an “[a]pproxi-mately 22 caliber weapon.” After “[j]ust a couple of minutes,” Lima moved away. Id. at 21-22.

The lieutenant sent for the police and then went to the front of the plant, where he saw Lima but no gun. After someone loudly mentioned that the police had been summoned, Lima got into his car and drove to a parking lot across the street. When the police arrived a few minutes later, they found no gun on Lima, in his car, or in the vicinity. Id. at 22.

Despite some ambiguity in the evidence, the AU concluded that “the weapon was a genuine 22 caliber pistol.” Id. However, the AU also found that Lima

was not seen holding the pistol in his hand, and thus gave no evidence of “apparent willingness to use” the gun. The record contains no indication that any nonstriking employees were in the vicinity at the time (11:15 a.m. or thereabouts) at which Lima was spotted; the shift begins at 7 a.m. and ends at 3:30 p.m. This decision to stick a pistol in his belt was evidently a rapidly passing fancy on Lima’s part. Guard Bishop said that he had “seen Mr. Lima a lot during the strike,” but these few moments were the only time that he had detected Lima wearing a pistol.

Id. at 23-24.

The ALJ concluded that Lima’s conduct did not constitute “serious misconduct” disqualifying him from reinstatement under the standards set forth in NLRB v. Illinois Tool Works, 153 F.2d 811, 815-16 (7th Cir.1946); General Telephone Co., 251 N.L.R.B. 737, 738-39 (1980), enforced mem., 672 F.2d 894 (D.C.Cir.1981); MP Industries, Inc., 227 N.L.R.B. 1709, 1710 (1977); W.C. McQuaide, Inc., 220 N.L.R.B. 593, 594 (1975), enforced as modified, 552 F.2d 519 (3d Cir.1977); and Coronet Casuals, Inc., 207 N.L.R.B. 304, 304-05 (1973). ALJ Decision at 2-6, 24. The ALJ described this standard as follows:

The statute has no interest in protecting misconduct not fairly classifiable as the venting of human emotion, and more properly adjudged to be a calculated effort to apply force in a manner which meaningfully infringes upon the rights of nonstrikers, the employer, and the remainder of society.. When a striker engages in the, sort of non-“exuberant” misconduct for which the employer might well discharge an employee in a non-strike situation, there is no discernible reason for according special protection to the employee. And that, I take it, is essentially what is meant by the Board’s requirement that the disqualifying misconduct be regarded as “serious.”

Id. at 6. The ALJ found particularly relevant to the instant case the Board’s decision — and the Seventh Circuit’s reversal— in Advance Industries Division-Overhead Door Corp., 220 N.L.R.B. 431 (1975), rev’d in relevant part, 540 F.2d 878 (7th Cir.1976). In Advance Industries, the Board upheld an ALJ’s conclusion that a striker’s actions in aiming a gun at the employer’s factory, without firing it, did not warrant denial of reinstatement. Id. at 431, 439.² The Seventh Circuit reversed:

[The striker’s] actions could not have failed to direct attention to her and to what she was doing. The actions were openly performed in the picketing area of a plant which was not shut down but which was attempting to continue its operation with non-strikers. Word that strikers were armed could have a strong coercive effect on non-strikers; a striker’s apparent willingness to use a weapon makes the effect even stronger. That this effect was not demonstrated to the AU is not relevant; the misconduct still occurred.

540 F.2d at 882, quoted in ALJ Decision at 23. Because, in contrast, Lima showed no “apparent willingness to use” the gun and was never seen with the gun in his hand, and because there was no evidence that any non-striking employees were in the vicinity at the time Lima made his appearance, ALJ Decision at 23, the AU found that Lima’s case was distinguishable from Advance Industries:

The foregoing circumstances, as well as the decision of the full Board in Advance Industries, lead me to conclude that the Board would not consider Lima to be guilty of “serious misconduct” in wearing in his belt for these few minutes, out of sight of nonstriking employees and off company property, what probably was a 22 caliber pistol. I agree [with Keco] ... that “[t]o allow a striking employee openly to wear a weapon in the vicinity of a picket line would be to flirt with disaster and to encourage intimidation,” but I would at least require a showing that the striker knowingly flaunted the weapon in the presence of nonstrikers.

Id. at 24. Accordingly, the AU concluded that, in discharging Lima, Keco had committed an unfair labor practice, and recommended that Lima be reinstated with back pay. Id. at 24-26. The Board summarily rejected the recommendations of the AU and dismissed the complaint. Board Decision at 1-3.

II. Discussion

The brevity and conclusory character of the Board’s decision stand in sharp contrast to the AU’s careful analysis. The decision of the Board first recites the test articulated in Clear Pine Mouldings, 268 N.L.R.B. 1044 (1984), which held that strikers forfeit their reinstatement rights when they engage in “misconduct ... that, under the circumstances existing, ... may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” Id. at 1046, quoted in Board Decision at 1. The Board then states, without analysis, that “in these circumstances, Lima’s conduct was the kind of misconduct that would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights,” and that Lima had therefore forfeited his reinstatement rights. Board Decision at 1-2. The Board’s opinion observes that “[t]he salient fact here is that Lima carried and displayed a weapon in the vicinity of the plant entrance used by nonstrikers,” id. at 2; however, the Board makes no attempt to explain why this fact is “salient” or to identify exactly what “circumstances” persuade the Board that Lima’s conduct satisfied the Clear Pine Mouldings standard. The Board’s decision is further confused by a passing comment, in a footnote of the opinion, noting that Chairman Dotson would apply a per se rule:

Chairman Doston [sic] finds it difficult to envision any set of circumstances where weapon carrying in the tense atmosphere created by a picket line would not reasonably tend to be coercive under the standard of Clear Pine Mouldings, supra.

Id. at 2 n. 1. However, because this position is offered without comment or response, it is unclear to what extent the Chairman’s views reflect those of the other two members of the Board panel. With no further clarification, the Board’s opinion summarily dismisses the complaint.

From such a sparse opinion we are unable to discern either the Board’s reasoning or its factual assumptions. We cannot tell, for example, whether the Board intends to adopt Chairman Dotson’s per se rule. Furthermore, in determining what constitutes “misconduct,” we do not understand whether the Board views the legality of the petitioner’s conduct as relevant. In other words, if Lima violated no law, can he be found to have engaged in misconduct? In addition, it is unclear whether the Board assumes that other employees saw (or could have seen) Lima’s gun. If such an assumption underlies the Board’s decision, it is unclear whether there is any evidence to support the factual conclusion. And, if there is no evidence to suggest that other employees saw Lima with a gun, and thus no evidence that they could have been threatened, on what grounds can it be found that Lima’s conduct “reasonably tend[ed] to coerce or intimidate employees in the exercise of rights protected under the Act”?

Without some explanation of how the Board reached its conclusion, we have no basis in the record upon which to evaluate whether the Board’s application of the Clear Pine Mouldings rule is rational, based on substantial evidence, and consistent with the Board’s own precedents.³ Accordingly, we grant the petition for review and remand this case to the Board for further consideration and a reasoned opinion, thereby providing a meaningful basis for judicial review under 5 U.S.C. § 706(2) (1982). See, e.g., Darr v. NLRB, 801 F.2d 1404, 1408-09 (D.C.Cir.1986) (remanding where Board did not clearly explain the basis for its decision); cf. Oil, Chemical & Atomic Workers Int’l Union v. NLRB, 806 F.2d 269, 273-74 (D.C.Cir.1986) (remanding where Board failed to explain departure from precedent).

So Ordered.

1 . The back gate was being used as the plant entrance for nonstriking workers at the time of this incident. AU Decision at 24 n. 33.

2 . The Board later reached a similar result in Mosher Steel Co., 226 N.L.R.B. 1163, 1166 (1976), where it held that a striking employee who held a large rock in each hand while shouting and making threatening gestures at a truck-driver did not forfeit his reinstatement rights under the Act.

3 . The dissenting opinion labors long and hard to fill these gaps. Its creative rewriting of the record apparently aims to simplify the case considerably for the Board on remand. Had the dissenting opinion been the opinion on review before this court, there arguably would be no need for further consideration by the Board. However, we remain faithful to the principle that a court can adjudicate only the case before it, not the case it wishes were before it. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983) ("[A]n agency's action must be upheld, if at all, on the basis articulated by the agency itself.”).