Citizens Investment Services Corp. v. National Labor Relations Board

430 F.3d 1195, 368 U.S. App. D.C. 422, 178 L.R.R.M. (BNA) 2729, 2005 U.S. App. LEXIS 27711, 2005 WL 3440688
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 16, 2005
DocketNo. 04-1317
StatusPublished
Cited by13 cases

This text of 430 F.3d 1195 (Citizens Investment Services Corp. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Citizens Investment Services Corp. v. National Labor Relations Board, 430 F.3d 1195, 368 U.S. App. D.C. 422, 178 L.R.R.M. (BNA) 2729, 2005 U.S. App. LEXIS 27711, 2005 WL 3440688 (D.C. Cir. 2005).

Opinions

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge.

The only question in this appeal is whether substantial evidence on the record considered as a whole supports the finding of the National Labor Relations Board that Citizens Investment Services Corporation (“the Company”) violated section 8(a)(1) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(1) (2000), by discharging financial consultant Christopher Hayward because of his protected concerted activity of protesting compensation terms and payments for financial consultants. Because there is substantial evidence, and consistent with our limited scope of review, we deny the Company’s petition for review and grant the Board’s cross-petition for enforcement.

I.

Section 7 of the Act, 29 U.S.C. § 157, guarantees employees the right to engage in “concerted activities” not only for self-organization but also “for the purpose of ... mutual aid or protection .... ” The broad protection of Section 7 applies with particular force to unorganized employees who, because they have no designated bargaining representative, must “speak for themselves as best they [can].” NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

The right to engage in concerted activities is protected by Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7.” Accordingly, an employer violates Section 8(a)(1) by discharging an employee for engaging in concerted activities protected by the Act. Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 263-64 (D.C.Cir.1994).

The events at issue followed a change in ownership and management of a financial services company. In 2001, Citizens Financial Group (“Citizens”) acquired the commercial banking operations of Mellon Bank, N.A., including the brokerage and investment counseling business of a subsidiary of Mellon, Dreyfus Investment Services Corporation (“Dreyfus”). Citizens created a subsidiary, the Company, in order to house the business acquired from Dreyfus and Mellon. During the acquisition, Citizens offered certain Dreyfus financial consultants employment at the Company. During the negotiations with the Dreyfus financial consultants in October 2001, Dx-eyfus proposed commission terms that were less favorable to experienced financial consultants than those originally proposed in September 2001. Certain experienced Dreyfus consultants complained about the changes immediately. Christopher Hayward, who had wox'ked for Dreyfus for six yeax-s and who was involved in these complaints, nonetheless accepted employment with the Company. In January 2002, the Company distributed a final commission schedule that included relatively unfavorable terms for more experienced financial consultants. By April 2002, Hayward also began to complain that commissions were not being corx-ectly calculated based upon the schedule. Hayward was discharged on July 2, 2002. The decision to discharge him was made by John Halechko (a Senior Vice President and Director of Investment Sales), Eric Hosie (a Regional Sales Manager in an adjacent territory), Barbara Blyth (a Human Resources Group Manager for Citizens), and David Hunter (the Regional Sales Manager for the Pittsbux'gh area).

Based on a charge filed by Hayward alleging that he was terminated as a resxilt of his protected concerted activities, the General Counsel to the Board filed a com[425]*425plaint alleging that the Company, as a result of interfering -with the exercise of Section 7 rights, had violated Section 8(a)(1) of the Act. The Administrative Law Judge (“ALJ”) found that the Company had violated Section 8(a)(1) and ordered that Hayward be reinstated or offered a position commensurate with his prior position, that any unfavorable references to the discharge be removed from Hayward’s personnel files, and that Hayward be made whole for any losses that he suffered as a result of his unlawful discharge. The Board affirmed, as relevant, the findings and order of the ALJ, and the Company petitions for review.

II.

The Company challenges the Board’s findings at each step of the analysis under Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981). Under Wright Line, the General Counsel must make a prima facie showing sufficient to support the inference that the employee is engaged in protected conduct and the employer was so aware, and that the protected activity was a motivating factor in the employer’s decision to take adverse action; the employer may rebut the inference by showing by a preponderance of evidence that the same action would have taken place even in the absence of the protected conduct. Laro Maint. Corp. v. NLRB, 56 F.3d 224, 228 (D.C.Cir.1995); see NLRB v. Transp. Mgmt. Corp. 462 U.S. 393, 401-03, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

The Company makes no reference in its briefs to our standard of review, which is limited. Determining whether activity is concerted and protected within the meaning of Section 7 is a task that “implicates [the Board’s] expertise in labor relations.” NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 829, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984). The Board’s determination that an employee has engaged in protected concerted activity is entitled to considerable deference if it is reasonable. Id. The Board’s determination of questions of motive is “give[n] even greater deference” by the court. Frazier Indus. Co. v. NLRB, 213 F.3d 750, 756 (D.C.Cir.2000); see Laro, 56 F.3d at 229. The Board’s findings of fact, if supported by substantial evidence on the record considered as a whole, are conclusive even if a reviewing court on de novo review would reach a different result. United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C.Cir.2004). The court will not overturn the Board’s acceptance of an ALJ’s resolution of conflicting testimony unless the ALJ’s determinations are “hopelessly incredible” or “self-contradictory.” Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 953 (D.C.Cir.1988) (quoting Conair Corp. v. NLRB, 721 F.2d 1355, 1368 (D.C.Cir.1983)).

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430 F.3d 1195, 368 U.S. App. D.C. 422, 178 L.R.R.M. (BNA) 2729, 2005 U.S. App. LEXIS 27711, 2005 WL 3440688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-investment-services-corp-v-national-labor-relations-board-cadc-2005.