Chicago Tribune Company v. National Labor Relations Board, and Local 134, International Brotherhood of Electrical Workers, Afl-Cio, Intervening

962 F.2d 712, 140 L.R.R.M. (BNA) 2286, 1992 U.S. App. LEXIS 10061
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 7, 1992
Docket91-1100, 91-1284
StatusPublished
Cited by14 cases

This text of 962 F.2d 712 (Chicago Tribune Company v. National Labor Relations Board, and Local 134, International Brotherhood of Electrical Workers, Afl-Cio, Intervening) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chicago Tribune Company v. National Labor Relations Board, and Local 134, International Brotherhood of Electrical Workers, Afl-Cio, Intervening, 962 F.2d 712, 140 L.R.R.M. (BNA) 2286, 1992 U.S. App. LEXIS 10061 (7th Cir. 1992).

Opinions

[714]*714HARLINGTON WOOD, Jr., Circuit Judge.

On February 3, 1989, the Chicago Tribune Co. (“Tribune”) discharged one of its electricians, Martin Kaczmarek, for “repeated violations of company and departmental policies.” The Tribune’s letter to Kaczmarek cited four specific incidents: (1) a suspension without pay on October 12, 1988, for “refusing to respond to an emergency situation,” (2) a warning on November 10, 1988, for “an unauthorized absence from your work area,” (3) a warning on January 10, 1989, for “neglect of duties and taking an unauthorized break,” and (4) another suspension without pay on January 18, 1989, for “the use of vile, obscene and profane language, and offensive and abusive behavior toward a management representative” in violation of established company policy. Kaczmarek had worked for the Tribune since 1983, was a member of Local 134, International Brotherhood of Electrical Workers, AFLr-CIO (“Union”), and had been a union steward since 1986. He actively and openly campaigned for union representation, was a union observer at the representation election on October 4, 1988, and a few days before the election had worn a T-shirt to work bearing the inscription, “October 4th vote yes.” Both Kaczmarek and his union petitioned the NLRB (or “Board”) for relief, claiming he had been disciplined and then discharged because of his union activities, a violation of section 8 of the National Labor Relations Act. 29 U.S.C. § 158(a)(1), (3).

After a hearing at which evidence was presented and witnesses testified, an administrative law judge (“AU”) found Kaczmarek’s discipline and discharge had been “pretextural” or, alternatively, the result of “dual motive.” A three-member panel, appointed by the Board, reviewed the AU’s decision, the exceptions and supporting brief filed by the Tribune, and the response brief filed by General Counsel. On behalf of the NLRB it affirmed, with minor exceptions, the AU’s rulings, findings, and conclusions and adopted his recommended order to reinstate Kaczmarek with back pay. The Tribune, because it is located in Chicago, Illinois, petitioned this court for review, and the NLRB filed a cross-petition for enforcement. 29 U.S.C. § 160(e), (f). The Union petitioned as an intervenor in support of the NLRB.

Generally the conclusion that discipline or discharge constitutes an unfair labor practice, that it is pretextual or the result of dual motive, can be reached only after a prima facie showing by a preponderance of the evidence that the employer acted because of antiunion animus, anti-union motive.1 NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616, 620 (7th Cir.1991); Southwest Merchandising Corp. v. NLRB, 943 F.2d 1354, 1359 (D.C.Cir.1991); 29 U.S.C. § 160(c). Because the Board did not expressly find anti-union animus and because evidence is neither cited in the Board’s Decision and Order nor contained in the record that would support such a finding, we deny enforcement, grant review, and vacate the order of the NLRB.

BACKGROUND

What is not in the AU’s decision and the record is materially more significant than what is. Nevertheless, to give some flavor of the controversy we summarize the four events cited in the Tribune’s letter that led to Kaczmarek’s discharge.

As a Tribune electrician, Kaczmarek was assigned to the Emergency Response Team, received training in firefighting and other emergency procedures, and, consequently, was expected to respond promptly to emergency situations. In the early hours of October 5, 1988, someone reported the smell of smoke in the press room. A supervisor, Robert Sweet, went to Kaczma-[715]*715rek where he was working in the reel room and asked him to investigate. According to the Tribune, his response was to tell Sweet, “go up to the shop and see my supervisor.” According to Kaczmarek, however, he responded that he did not smell smoke, advised Sweet to contact the supervisor, and then began investigating. The parties agree there was no fire; rather the odor was due to a recently turned on heating system. Subsequently, the Tribune suspended Kaczmarek for one week without pay and issued a written, “last and final warning” for his “refusing to respond to an emergency situation.”

On November 4, a few minutes after the start of his early-man shift assignment at 10 PM, Kaczmarek was observed eating in an alcove in the back of the fifth floor electrician’s shop. The Tribune claimed Kaczmarek was taking an unauthorized, early lunch; he, in turn, maintained it was only a snack, that he had determined no work needed to be done at the moment, that he had his supervisor’s permission, and that many other employees had done so without retribution, in large part because the Tribune cafeteria had been closing at 11 PM. The Tribune responded that Kaczmarek did not have permission and that by November 4 the cafeteria had extended its hours to 2 AM. The Tribune, maintaining the alcove was not part of his assigned work area that shift, warned Kaczmarek for “an unauthorized absence” from his work area.

Shortly after 6 AM, January 10, 1989, a shift supervisor, John Cannizzo, noticed that an overload light on the roll-conveyor system was lit. Initially believing someone was working on the problem, Cannizzo took no action. Soon he realized no one was; thus, he went to the nearby break room where he had seen three employees, including Kaczmarek, and asked them to investigate. None took any action, and Kaczma-rek is claimed to have told Cannizzo to call his supervisor. All three employees were subsequently disciplined, warned, by the Tribune for neglect of duty and taking an unauthorized break. Upon further review, the Tribune rescinded two of the warnings: one of the workers had not been assigned to answer trouble calls that day, and the other was his apprentice, obligated to follow a journeyman’s instructions. The Tribune kept Kaczmarek’s warning in effect, noting that one day before the incident Kaczmarek had requested the next day off, although company policy, known to Kaczmarek, required that days off be scheduled at least one week in advance.

Lastly, Kaczmarek is alleged, in the words of the NLRB’s brief, “to have used vulgar language to [a supervisor, Ed] Cook,” shortly after 11 PM, January 16, 1989. According to the Tribune, Kaczma-rek reported on time for his 11-PM shift; 15 minutes later he and another employee went to the appropriate break room for a smoke. Supervisor Cook was conducting a meeting with his workers in that room at the time; he explained no other room had been available for the meeting and asked the two to leave. One did, but Kaczmarek remained and argued with Cook about the use of the room, thus, disrupting the meeting and, according to the Tribune, upsetting Cook’s crew to such an extent that he was forced to end the meeting. Cook testified that Kaczmarek said that “I ought to get my shit together and why the fuck can’t I smoke, and the fuck it won’t.” Caroline Gray, a member of Cook’s crew who had been at the interrupted meeting, testified:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
962 F.2d 712, 140 L.R.R.M. (BNA) 2286, 1992 U.S. App. LEXIS 10061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-tribune-company-v-national-labor-relations-board-and-local-134-ca7-1992.