Neptune Water Meter Company, a Division of Neptune International Corporation v. National Labor Relations Board

CRAVEN, Circuit Judge:

This is a petition for review and cross-application for enforcement of an order of the National Labor Relations Board. The Board found that the Company violated § 8(a)(1) of the Act by interrogating, interfering, restraining, coercing, threatening and engaging in surveillance of its employees with respect to their Union or concerted activities, and violated § 8(a)(3) and (1) of the Act by discharging employees Thomas T. McLemore and William D. Tyson because of their Union activity. The only question presented on appeal is whether the Board’s findings of fact are supported by substantial evidence.

The Company admits, with respect to the § 8(a)(1) violation, that the Board’s findings of alleged threats and interrogation are based upon conflicting testimony, and where that is true the Board may decide which version to believe. Petitioner’s Brief at 32. The Company nevertheless insists that the discharges of Thomas McLemore and William Tyson were for just cause under § 10(c) of the Act and were not wrongfully motivated. It is true that the trial examiner concluded that the Company had reason to be dissatisfied with McLemore’s record for tardiness. App. 67. But he nevertheless found that the motivation for termination was not tardiness but the Company’s knowledge that McLemore had signed an authorization card and had joined with others to support the Union.

The same thing can be said of Tyson. He had unexcused absences attributable to drunkenness, App. 69, but it was not until after the election at which Tyson had been the Union observer that he was discharged. In the course of deciding that Tyson was discharged for his Union activism, the Board weighed conflicting factors: his supervisor’s manifest antipathy to Tyson’s advocacy of the Union, his satisfactory work performance as reflected by periodic raises, and his unexcused absences. App. 74.

It is for the Board and not for us to decide whether McLemore and Tyson were fired for just cause or for Union adherence and activity. NLRB v. Lester Bros., Inc., 337 F.2d 706, 708 (4th Cir. 1964). Nor is the Board’s finding of invidious motivation impaired by its findings of tardiness and unexcused absences. It is settled in this circuit, and most of the others,¹ that “it is enough that a discriminatory motive was a factor in the employer’s decision.” Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 304 (4th Cir. 1968); Winn-Dixie Stores, Inc. v. NLRB, 448 F.2d 8, 13 n. 16 (4th Cir. 1971); NLRB v. Hanes Hosiery Div., Hanes Corp., 413 F.2d 457, 458 (4th Cir. 1969); Filler Products, Inc. v. NLRB, 376 F.2d 369, 377 (4th Cir. 1967).

In Firestone Tire and Rubber Co. v. NLRB, 539 F.2d 1335 (4th Cir. 1976), we said that “ ‘the burden which is on the Board is not simply to discover some evidence of improper motive, but to find an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one.’ ” Judge Russell was writing in the context of an employer with long experience in labor relations and without the slightest indication of anti-union animus. Indeed the findings of fact in the Firestone case did not disclose that the Company official who actually fired the employee even knew of his activities as a Union steward.

Firestone is not to be read to mean that there is a dichotomy between good and bad reasons. It does not change the rule in this circuit that discriminatory motivation need be only a factor in the discharge. Rather, it made clear that where there is evidence of a proper motive for dismissal, the Board’s mere characterization of the Company’s assigned reason as “pretextual,” without citation of evidence indicating invidious purpose, will not suffice. In short, mere union membership and concerted activity does not, of course, insulate a worker from being discharged for just cause. Nor does an employer’s anti-union animus destroy his right to discipline for just cause. But these are not irrelevant factors, as Judge Russell concedes, and may be considered by the Board in drawing an inference that invidious motivation was a factor in deciding to discharge.

The rule is that if the employee has behaved badly it won’t help him to adhere to the Union, and his employer’s anti-union animus is not of controlling importance. But if the employee is a good worker and his breach of the work rules trivial, the more rational explanation for discharge may be invidious motivation. Such motivation can be found from the absence of any good cause for discharge. This must be so unless we are willing to assume something we know to be false: that businessmen hire and fire without any reason at all.

In the end after weighing all relevant factors including particularly the gravity of the offense, an unfair labor practice may be found only if there is a basis in the record for a finding that the employee would not have been discharged, though he may have been subjected to a milder form of punishment for the offense, except for the fact of his union activity.

When McLemore was hired, he was instructed by the personnel supervisor that “he was not to pay any attention” when someone asked him to sign a union card or attend a meeting. App. 62, 177. McLemore violated these instructions by signing a card and going to a union meeting. App. 63, 180. When he was fired, his supervisor said, “I told you about that union business.” App. 63, 181. Or as another witness expressed it, “I warned you about messing with the union.” App. 64, 67, 155, 169, 236.

The gloating refrain, “I told you so,” probably reveals a person’s intention as clearly as any other phrase in the English language. Certainly in this case it serves to sustain the Board’s finding that the Company’s alleged reason for the discharge was a sham.²

Our review of the record reveals substantial evidence to support the Board’s finding of discriminatory motivation in the dismissals of McLemore and Tyson, as well as the 8(a)(1) violations, and accordingly the Board’s order will be

ENFORCED.

1 . NLRB v. Southeastern States, 73 LRRM 2702 (5th Cir. 1970); Betts Baking v. NLRB, 380 F.2d 199 (10th Cir. 1967); Teamsters Local 152 v. NLRB, 120 U.S.App.D.C. 25, 343 F.2d 307 (1965); NLRB v. West Side Carpet Cleaning Co., 329 F.2d 758 (6th Cir. 1964); NLRB v. Symons Mfg. Co., 328 F.2d 835 (7th Cir. 1964); NLRB v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (2d Cir. 1962); NLRB v. Buitoni Foods Corp., 298 F.2d 169 (3d Cir. 1962).

2 . McLemore’s tardiness was considered by the administrative law judge in the context of shop practice. The regular starting time was 7 a. m., but skilled machinists like McLemore tended to work more than eight hours a day and sometimes started work before 5 a. m. McLemore’s actual attendance record is set forth below. On ten out of the 17 days he worked he put in more than ten hours, and although he was late some mornings, on others he started as much as two hours and 15 minutes ahead of time.