National Surface v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: May 15, 1995
• Docket: 94-2048
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-2048

                           NATIONAL SURFACE CLEANING, INC.,

                                     Petitioner,

                                          v.

                           NATIONAL LABOR RELATIONS BOARD,

                                     Respondent.

____________________

ON PETITION FOR REVIEW AND CROSS-APPLICATION
                            FOR ENFORCEMENT OF AN ORDER OF
                          THE NATIONAL LABOR RELATIONS BOARD

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

Nathan L.  Kaitz with whom Morgan,  Brown & Joy  was on brief  for
            ________________           ____________________
        petitioner.
            Richard Cohen  with whom Frederick  Havard, Supervisory  Attorney,
            _____________            _________________
        Frederick L. Feinstein, General  Counsel, Linda Sher, Acting Associate
        ______________________                    __________
        General  Counsel,  Aileen  A.   Armstrong,  Deputy  Associate  General
                           ______________________
        Counsel,  and  National  Labor  Relations  Board  were  on  brief  for
                       _________________________________
        respondent.

                                 ____________________

                                     May 15, 1995
                                 ____________________



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ALDRICH, Senior Circuit Judge.   This is a petition
                               ____________________

            by National Surface Cleaning, Inc. to review and set aside an

            order of the  National Labor Relations Board  finding that it

            unlawfully  discharged  employees  Humberto   Yeppes,  Carlos

            Silva,  Libardo  Quintero,  and  Jairo and  Cesar  Duque,  in

            violation of  Section 8(a)(4) and  (1) of the  National Labor

            Relations Act, 29 U.S.C.   158(a)(4) and (1).  In re National
                                                           ______________

            Surface Cleaning, 314 NLRB No. 92 (July 28, 1994).  The Board
            ________________

            found National  violated the Act by notifying Yeppes on March

            13,  1993  that he  would never  work  for the  company again

            because  of  having filed  an  unfair  labor practice  charge

            against  it on  March 2,  1993, and  by discharging  the four

            others for assisting or  supporting him.  National's position

            is that (1) substantial evidence does not support the Board's

            finding as  to Yeppes  because  he was  let go  prior to  its

            learning of  the charge,  (2) the Board  misconstrued section

            8(a)(4)  in  ruling  that  it protects  the  others,  and (3)

            ignored evidence indicating National's actions were in no way

            based upon the charge.

                      Background
                      __________

                      National is engaged in  asbestos removal at various

            sites  in and  around New York.   At  each site  it employs a

            project  manager, foremen,  and  a crew  of asbestos  removal

            workers,  members of  the  Mason Tenders  Union.   Typically,

            these workers are hired on a  project by project basis.  They

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may be laid off for some time, and recalled when required.

                      As of  February 1992  the employees in  the present

            case were all working at  1411 Broadway under project manager

            Pablo Ortega.   On February  21, Ortega laid  off the  entire

            crew,1 with  the exception of  five employees who  he brought

            to a new  project at the Grace building.   Some of those laid

            off  believed  they  were not  transferred  because  National

            intended to complete the Grace job with non-union workers.

                      On March 2, 1992, Yeppes visited the Grace building

            and thanked Ortega for having employed  him at 1411 Broadway,

            but  Ortega did not  offer him work  at the new  site.  Later

            that day, Yeppes  filed an unfair labor  practice charge with

            the Board,  alleging National laid off its  employees at 1411

            Broadway and did not recall them to the Grace site because of

            their  union membership.  Around  March 5 Yeppes  and some of

            the others also complained to the union local.  On March 6 or

            7,  Ortega called Quintero and asked him to contact the group

            who  had been laid  off from 1411  Broadway and tell  them to

            report  to work  at the  Grace building  on Monday,  March 9.

            Quintero  complied,  but  did  not  call  Yeppes  because  he

            regarded Yeppes  as a supervisor2 and  therefore not included

            in the group.  On March 9, all except Yeppes began working at

____________________

            1.  There  was some dispute as to whether Yeppes was laid off
            at this time or sometime prior to the others.

            2.  Yeppes had at times been employed as a project manager.

                                         -4-



the Grace site.

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National  received Yeppes' Board complaint on March

            9, and  Ortega testified to hearing  about it by  March 10 or

            11.   However, a union  representative had visited  the Grace

            site to check union cards sometime before March 9.3

                      On March 12, foreman  Javiar Alzate told  Quintero,

            Silva  and the Duque brothers upon their arrival at work that

            they should not  begin and to wait for  Ortega.  According to

            the employees, when Ortega arrived he accused  them of filing

            a  complaint against him, which  they denied.   He claimed to

            have seen Yeppes' name on a complaint but admitted he had not

            seen  the others'  names.   He then  told them  they were  no

            longer needed at the Grace building but might be able to find

            work at  100 Wall  Street or  1411 Broadway.   He also  asked

            Jairo Duque to talk to Yeppes.  Ortega testified that he laid

            them off because they had been  late to work on March 12 (and

            Jairo Duque had  missed several days  that week) and  because

            they  never showed up at 1411 Broadway,4 but it is undisputed

            that the only subject  he discussed with them on  the morning

            of the 12th was the complaint.  Later that day foreman Alzate

____________________

            3.  The  testimony of  Jairo Duque  suggests that  Ortega was
            prompted  to recall the laid off workers after the union shop
            steward visited the building.

            4.  Ortega  testified that  he called  the Duque  brothers on
            Friday  evening, March  12, and  left a  message for  them to
            report to 1411 Broadway the next day for a weekend job.  They
            claim they were  never told.  They did go  to 100 Wall Street
            on Monday, March  16, but  found no one  there and,  assuming
            Ortega had misled them, never went to the 1411 Broadway site.

                                         -6-



told  two other employees that  a group could  no longer work

            for  National because they had put in a complaint against the

            company.    The  brother of  one  of  the  employees, also  a

            foreman, told him the same thing.

                      On March  13 Ortega called  Yeppes and said  he had

            found out about the  complaint and was upset that  Yeppes had

            come to thank  him and then turned around  and filed a charge

            against him.  Yeppes  testified that Ortega then told  him he

            would never work for  the company again.  Ortega  denied ever

            saying  this.  Yeppes in  fact has never  worked for National

            again,  and the other  four, despite efforts,  have also been

            unable to get themselves rehired.5

                                        Yeppes
                                        ______

                      Section 8(a)(4)  of the  Act makes it  unlawful "to

            discharge  or  otherwise  discriminate  against  an  employee

            because he has  filed charges or  given testimony under  this

            Act."   N.L.R.A.   8(a)(4), 29 U.S.C.   158(a)(4).  The Board

            found  Ortega's decision  not to  recall Yeppes to  the Grace

            building along with the others on March 9 did not violate the

                                
            ____________________

            5.  Quintero once  sought work  at 1411 Broadway  with a  co-
            worker, the co-worker was  hired, but Quintero was told  by a
            supervisor that  he had  been instructed  not to  hire anyone
            involved in the complaint against the company.  Another time,
            he  had been under the  impression that he  had been rehired,
            but when he showed up he  was informed he was not among those
            recalled because  he was involved  in the complaint.   Ortega
            eventually rehired  Silva for the 1411  Broadway weekend job,
            but  we decline  to  disturb the  Board's  finding that  this
            "simply represents . .  . that Ortega changed his  mind about
            Silva," and had no effect on the March 12 events.

                                         -7-



Act, but that Ortega's March 13  communication with Yeppes to

            the  effect  that he  would  never  work  for National  again

            because he had filed charges  against Ortega and the company,

            did.  The question here is not whether   8(a)(4) applies, but

            whether Yeppes was effectively discharged on March 13 because

            of the  charge, or for  unrelated reasons  sometime prior  to

            National's (or Ortega's) awareness of the charge, as National

            contends.

                      National  claims  the  evidence   establishes  that

            Ortega  never intended to recall Yeppes after he was laid off

            sometime  in February because he felt he could no longer work

            with  Yeppes6 and  never  intended to  hire  him again.    It

            insists that Yeppes had therefore been discharged well before

            it  became  aware  of   his  unfair  labor  practice  charge.

            National points to the fact that on March 2 Yeppes sought out

            Ortega  and thanked  him for  having given  him work,  and to

            Ortega's testimony  that he was dissatisfied  with Yeppes and

            that  it  was his  practice simply  to  never recall  such an

            employee, rather than  to inform him  that he is  permanently

            discharged, and  that all  of this conclusively  supports the

            inference that Yeppes had  been discharged effective prior to

            his  ever having filed the charge.  It furthermore claims the

____________________

            6.  National  claims  Yeppes  had  repeated  difficulty  with
            Ortega, in large part because he had once been employed  as a
            supervisor and  the younger  and less experienced  Ortega had
            worked under him.

                                         -8-



Board had no basis  for crediting Yeppes' testimony regarding

            Ortega's March 13 threat that Yeppes would never work for the

            company again when Ortega denied ever making it.

                      We are satisfied that the Board reasonably resolved

            these credibility issues against National, and its conclusion

            that the March 13  conversation transformed Yeppes' temporary

            lay off into permanent  discharge is supported by substantial

            evidence.  Universal Camera  Corp. v. NLRB, 341 U.S.  474, 71
                       _______________________    ____

            S.Ct. 456, 95 L.Ed. 456 (1951).  The  Board found no evidence

            Yeppes had  been permanently  discharged simply by  virtue of

            the fact  that he was not  recalled along with the  others on

            March  9.   Further,  simply  because  Ortega had  difficulty

            working  with Yeppes  does  not mean  other National  project

            managers  did  or would,  so  even  if Ortega  himself  never

            intended  to recall  Yeppes this  does not  mean he  had been

            discharged  by   National.     Yeppes   had  completed   jobs

            satisfactorily for other National supervisors, and had been a

            project  manager himself prior to working for Ortega.  And if

            Yeppes  had already  been permanently  discharged,  why would

            Ortega  need to tell him  on March 13,  while castigating him

            for filing charges against him and the company, that he would

            never  work  for  the  company  again,  as  the  Board found.

            Finally, there  was evidence that other  supervisors had been

            told not to use  any of the employees associated  with filing

            the  charge,  providing the  Board  with  reason to  conclude

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Ortega's threat was neither fictional nor 

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idle, and was  prompted by and  delivered in retaliation  for

            Yeppes' having exercised his rights under the Act.

                               The Four Other Employees
                               ________________________

                      As to the other  four employees, the questions are,

            first, whether  they were discharged; second,  if so, whether

            this was for being late  to work and not showing up  at a job

            to  which they  had  allegedly been  reassigned, as  National

            contends, or because National believed  they had participated

            in  filing charges  under the  Act, as  the Board  found; and

            third,  whether      8(a)(4)  prohibits   an  employer   from

            discharging  or otherwise discriminating  against an employee

            for believing  that he  "supported" or "assisted"  another in

            relation to filing such charges against it.

                      Reasons for the Discharge
                      _________________________

                      The  Board  concluded   that  the  four  had   been

            discharged,   "because  they  had   a  reasonable  basis  for

            believing  . .  . that  the Company  no longer  desired their

            services," citing Ridgeway Trucking Co., 243 NLRB 1048 (1979)
                              _____________________

            ("the  fact of  a discharge  does not  depend on  the  use of

            formal  words of  firing,"  but upon  whether the  employer's

            words or  actions "would logically  lead a prudent  person to

            believe his  tenure had been terminated").  Second, the Board

            found their discharge was in retaliation for the unfair labor

            practice charge, which National believed they "supported"  or

            "assisted" Yeppes in filing.

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National counters that  the evidence is clear  that

            Quintero,  Silva  and  the  Duque  brothers  were  discharged

            because they were late to work  on March 12, and did not show

            up  at 1411  Broadway on March  14, the  job to  which Ortega

            testified  he had  reassigned them.   The  Board's considered

            assessment  of the  evidence  found it  did not  support this

            version of events.  

                      Again, we find the Board's conclusion is based upon

            reasonable resolutions  of credibility issues.   There was no

            evidence lateness was discussed during Ortega's interrogation

            of the  four employees  on the  morning of  March 12,  nor is

            there any solid evidence each of them was late  on that day.7

            There was evidence, however,  that during this meeting Ortega

            was visibly  upset by news  of the charge,  initially accused

            the  four men of having filed  it, repeatedly questioned them

            about it,  specifically  requested that  Jairo Duque  contact

            Yeppes in a manner  that suggested, as the Board  found, that

            he meant for Jairo  to talk Yeppes into dropping  the charge,

            and simultaneously informed all  four that they were  off the

            job.  The four denied  ever being told to report for  work at

            1411 Broadway on Saturday,  March 14.  Nor is  there evidence

            that  the supervisor on that  project expected them.   On the

            contrary, they testified that Ortega told them to try to find
                                                              ___

                                
            ____________________

            7.  In  fact,  there was  testimony  that  Silva was  already
            upstairs  suiting up  for work  when he was  told to  go back
            downstairs and wait for Ortega to arrive.

                                         -12-



work  elsewhere, at 100 Wall  Street or 1411  Broadway.  When

            they  tried the former, they found no one there and concluded

            they had been, in effect, discharged.

                      The Scope of Section 8(a)(4)
                      ____________________________

                      National  contends in  any event  that  an employer

            cannot  be  found in  violation of     8(a)(4) for  taking an

            adverse action against an  employee unless that employee has,

            strictly, "filed  charges or given testimony  under the Act."

            N.L.R.A.   8(a)(4), 29 U.S.C.   158(a)(4), and that the Board

            impermissibly  broadened its  scope  by ruling  that it  also

            protects supporting  or assisting another in  relation to the

            filing of charges.

                      Section 8(a)(4) should be  read broadly in favor of

            the employee,  NLRB v. Scrivener,  405 U.S. 117,  122 (1972),
                           ____    _________

            NLRB  v. Globe Manufacturing Co.,  580 F.2d 18,  20 (1st Cir.
            ____     _______________________

            1978), and  the Board's reading, if  permissible, is entitled

            to substantial deference.  NLRB  v. J. Weingarten, Inc.,  420
                                       ____     ___________________

            U.S. 251, 266-67 (1974).

                      Scrivener held that    8(a)(4) protected  employees
                      _________

            who  gave   sworn  statements  to  a   Board  field  examiner

            investigating an  unfair labor practice charge  filed against

            their employer, although  they had neither personally  "filed

            charges" nor literally "given testimony."  405 U.S. 117, 121.

            The  Court  found  this  liberal approach  justified  by  the

            congressional  purpose to allow "all persons with information

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about  [unfair labor]  practices to  be completely  free from

            coercion against  reporting them  to the Board,"  id. at  121
                                                              ___

            (citation  omitted),  and to  protect  the  integrity of  all

            investigative stages of  Board proceedings and  an employee's

            participation  in   them,  regardless  of  whether  it  falls

            somewhere  between an  actual filing  and formal  testifying.

            Id. at 122-124.
            ___

                      The   Scrivener   rationale   has   led    to   the
                            _________

            interpretation of   8(a)(4) to protect an employee who merely

            threatens to file  charges with the  Board, Grand Rapids  Die
                                                        _________________

            Casting  Corp. v.  NLRB, 831  F.2d 112  (6th Cir.  1987); who
            ______________     ____

            refuses to  testify on the  employer's behalf in  relation to

            charges filed with the Board, NLRB v. Retail Store  Employees
                                          ____    _______________________

            Union  Local 876, 570 F.2d 586, 590 (6th Cir.), cert. denied,
            ________________                                ____________

            439  U.S. 819  (1978) ("[c]oercing  employees to  give untrue

            testimony just  as surely  undermines the integrity  of Board

            proceedings as  does coercing employees to  give no testimony

            at  all"); or whom the employer believes has filed or intends

            to file a charge with the Board.  First National Bank & Trust
                                              ___________________________

            Co.,  209 N.L.R.B.  95, enf'd,  505 F.2d  729 (3d  Cir. 1974)
            ___                     _____

            (table). 

                      Here  the  Board found  that Ortega  had discharged

            Quintero, Silva,  and the Duque brothers  because he believed

            "that  they had supported Yeppes in relation to the filing of

            the  unfair labor practice charge."   Strictly, it twice used

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the verb "support," and  twice the verb "assist."   We deduce

            from the  factual context  in which it  grounded its  finding

            that the  Board concluded  Ortega was  motivated by  a belief

            that  the  men either  had or  intended  to provide  not mere

            encouragement or reassurance, but actual, tangible support in

            the prosecution  of Yeppes' complaint,  i.e., in the  form of

            providing corroborative statements or testimony, which Ortega

            knew them to be in a position to do.  These men had been part

            of  the group allegedly laid  off by Ortega  because of their

            union  membership and stood in the exact same positions vis a

            vis their employer  and the  Board as did  Yeppes, save  that

            Yeppes  had been the only one to actually sign the complaint.

            The Board  reasonably surmised Ortega's dismissal  of the men

            to have  been prompted  by a  belief that  they had  or could

            corroborate Yeppes' allegations to the Board, i.e., that they

            had or might exercise their rights under the Act.

                      The order  of the Board is  therefore affirmed, and
                                                            ________

            its cross-appeal for enforcement is granted.
                                                _______

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