NLRB v. International Paper

• Court: Court of Appeals for the First Circuit
• Decided: August 31, 1993
• Docket: 92-2236
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 92-2236

                      LOCAL 14 UNITED PAPERWORKERS INTERNATIONAL
                     UNION, AFL-CIO AND INTERNATIONAL BROTHERHOOD
                      OF FIREMEN AND OILERS, LOCAL 246, AFL-CIO,

                                     Petitioner,

                                          v.

                           NATIONAL LABOR RELATIONS BOARD,

                                     Respondent.

        No. 92-2346

                            NATIONAL LABOR RELATIONS BOARD

                                     Petitioner,

                                          v.

                             INTERNATIONAL PAPER COMPANY,

                                     Respondent.
                                 ____________________

                         ON PETITION FOR REVIEW OF AN ORDER 
                        OF THE NATIONAL LABOR RELATIONS BOARD
                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________
                                 ____________________

            Jeffrey Neil  Young with whom  McTeague, Higbee, Libner,  MacAdam,
            ___________________            ___________________________________
        Case   &  Watson  was  on  brief  for  Local  14  United  Paperworkers
        ________________
        International Union, etc.
            Vincent J. Falvo,  with whom Linda Dreeben, Supervisory  Attorney,
            ________________             _____________
        Julie B.  Broido, Senior Attorney,  Jerry M. Hunter,  General Counsel,
        ________________                    _______________
        Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos,
        _______________                                 _____________________
        Acting  Associate General  Counsel,  and Aileen  A. Armstrong,  Deputy
                                                 ____________________
        Associate  General Counsel, were on brief for National Labor Relations
        Board.
            Jane B.  Jacobs with whom Nancy  B. Schess, Lee  R. A. Seham,  and
            _______________           ________________  ________________
        Seham, Klein & Zelman  were on brief for International  Paper Company,
        _____________________

amicus curiae.
                                 ____________________

                                   August 19, 1993
                                 ____________________

STAHL,   Circuit   Judge.      Local   14,   United
                               _______________

            Paperworkers International Union,  AFL-CIO and  International

            Brotherhood  of  Fireman  and  Oilers,  Local  246,   AFL-CIO

            (referred to collectively as "the Union") petition this court

            to review  and set  aside that  portion of  an  order of  the

            National  Labor  Relations   Board  ("the  Board")  affirming

            International   Paper  Company's  ("IP")  discharge  of  four

            striking   employees  for  strike-related   misconduct.    IP

            intervenes  on the  side  of the  Board.   The  Board  cross-

            petitions for enforcement of that part of its order requiring

            IP  to offer a fifth  striker reinstatement.   In the Board's

            cross-petition,  the  Union intervenes  on  the  side of  the

            Board.  For the reasons set forth below, we grant enforcement

            of the Board's order in its entirety. 

                                          I.
                                          I.
                                          __

                                  FACTUAL BACKGROUND
                                  FACTUAL BACKGROUND
                                  __________________

                      IP operates the Androscoggin Paper Mill in Jay,

            Maine.  Approximately 1200 members of the Union are among the

            employees at the Jay facility.  In June 1987, the collective

            bargaining agreement between IP and the Union expired, and

            Union workers went on strike.  Nevertheless, IP maintained

            operations at the mill throughout the strike, employing non-

            striking union members and non-union replacement workers. 

            The walkout was marked by periodic outbreaks of violence,

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                                          3

threats, and general strike-related misconduct.  In October,

            1988, after the strike ended, IP discharged eleven strikers. 

                      The discharges prompted the Union to file an unfair

            labor practice charge alleging that IP violated sections

            8(a)(3) and (1) of the National Labor Relations Act, 29

            U.S.C.   158(a)(3) and (1) ("the Act").  The Union maintained

            that IP discriminated against striking employees by

            dismissing strikers for strike-related misconduct while

            failing to dismiss non-strikers who had engaged in equally

            serious or more serious misconduct.  In a hearing before an

            Administrative Law Judge ("ALJ"), the Union's discrimination

            challenge was limited to the discharge of the following five

            strikers:  Lawrence Bilodeau, Lawrence Chicoine, Forrest

            Flagg, Thomas Hamlin, and Arthur Storer.  The ALJ compared

            their respective acts of misconduct with that of non-striker

            Andrew Barclay and found that all five strikers had engaged

            in strike-related misconduct which warranted their discharge,

            but that IP's dismissal of strikers Bilodeau and Flagg

            constituted unlawful disparate treatment.  The ALJ's finding

            was predicated on his determination that non-striker Barclay,

            who retained his job but received a warning, had engaged in

            strike-related misconduct at least as serious as the

            misconduct of Bilodeau and Flagg.  The ALJ found no disparate

            treatment, however, in IP's discharge of Chicoine, Hamlin and

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                                          4

Storer.  Both IP and the Union filed exceptions to the ALJ's

            decision.

                      On September 20, 1992, the Board issued a final

            decision and order.  The Board affirmed the ALJ's finding

            that IP had not engaged in disparate treatment in dismissing

            Chicoine, Hamlin and Storer.  The Board also sustained the

            ALJ's holding that IP had wrongfully discharged Bilodeau and

            ordered his reinstatement.  However, the Board reversed the

            ALJ's decision as to Flagg, finding his misconduct more

            serious than that committed by any of the non-strikers.  This

            petition for review and cross-petition for enforcement

            followed.    

                                         II.
                                         II.
                                         ___

                                  Standard of Review
                                  Standard of Review
                                  __________________

                      This court must enforce the Board's order if its

            findings are supported by substantial evidence on the record

            considered as a whole and if it correctly applied the law. 

            NLRB v. Acme Tile & Terrazzo Co., 984 F.2d 555, 556 (1st Cir.
            ____    ________________________

            1993).  Substantial evidence "means such relevant evidence as

            a reasonable mind might accept as adequate to support a

            conclusion."  NLRB v. Auciello Iron Works, Inc., 980 F.2d
                          ____    _________________________

            804, 807 (1st Cir. 1992) (citations and internal quotations

            omitted).  We are compelled to review the Board's order with

            considerable deference and "may not substitute [our] own

            judgment for that of the Board when the choice is between two

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                                          5

fairly conflicting views, even though the court would

            justifiably have made a different choice had the matter been

            before it de novo."  Destileria Serrales, Inc. v. NLRB, 882
                                 _________________________    ____

            F.2d 19, 21 (1st Cir. 1989) (citations and internal

            quotations omitted).  Moreover, when this court reviews an

            agency's credibility finding, "we must accept the finding

            unless it exceeds `the bounds of reason.'"  Boston Mut. Life
                                                        ________________

            Ins. Co. v. NLRB, 692 F.2d 169, 170 (1st Cir. 1982) (quoting
            ________    ____

            P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 382 (1st Cir.
            ______________________    ____

            1978)).  Finally, "we need not limit ourselves to the exact

            grounds for decision utilized below.  We are free, on appeal,

            to affirm a judgment on any independently sufficient ground." 

            Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir.
            ___________    __________________

            1992) (quoting Polyplastics, Inc. v. Transconex, Inc., 827
                           __________________    ________________

            F.2d 859, 860-61 (1st Cir. 1987)), cert. denied, 113 S. Ct.
                                               _____ ______

            1416 (1993).

                                         III.
                                         III.
                                         ____

                   Conduct of Five Strikers and Non-Striker Barclay
                   Conduct of Five Strikers and Non-Striker Barclay
                   ________________________________________________

                      Having carefully reviewed the ALJ's factual

            findings, which were adopted by the Board, we find them

            eminently supportable and therefore accept the ALJ's version

            of the events.  We summarize them as follows:

                 Non-striker Andrew Barclay:  On July 30, 1987, Barclay
                 Non-striker Andrew Barclay
                 and his son, carrying baseball bats, confronted a group
                 of strikers who were attending a party near Barclay's
                 lakefront home.  Barclay complained to the strikers
                 about being harassed and constantly called a "scab", and
                 told them that he and his son were there to "clean [the

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                                          6

strikers] all out."1  The strikers asked Barclay to
                 leave, but he did not.  In an attempt to wrest the bat
                 from Barclay, striker Charles Fullerton received a cut
                 that required minor medical attention. 

                 Striker Lawrence Bilodeau:  On October 28, 1987,
                 Striker Lawrence Bilodeau
                 Bilodeau, returning home from work, passed the home of a
                 replacement worker.  At the time, the worker was
                 standing in front of his house with his family. 
                 Bilodeau then turned his truck around and stopped in
                 front of the worker's home.  Bilodeau noticed that the
                 worker was writing down his license plate number, and
                 yelled "I've worked at the mill for twenty years, and
                 you ain't gonna be living here long you [expletive
                 deleted].  Go ahead and write down my license.  I live
                 right around the corner."

                 Striker Lawrence Chicoine:  On June 27, 1987, Chicoine
                 Striker Lawrence Chicoine
                 was picketing outside of the mill when he accosted one
                 non-striker and told her that he would kill her for
                 crossing the picket line.  On July 1, 1987, Chicoine was
                 again picketing outside of the mill when he used a
                 megaphone to threaten a number of replacement workers as
                 they arrived for work that "he had a .44" and "would
                 blow [their] heads off."    

                 Striker Forrest Flagg:  On December 8, 1987, a
                 Striker Forrest Flagg
                 replacement worker drove by Flagg as Flagg picketed
                 outside of the mill.  Flagg opened the passenger door of
                 the replacement worker's car, reached into the car, and
                 shouted "I'll kill you."

                 Striker Thomas Hamlin:  On August 7, 1987, after
                 Striker Thomas Hamlin
                 consuming a large quantity of beer and smoking numerous
                 marijuana cigarettes, Hamlin got into a truck and
                 followed two groups of replacement workers as they
                 returned home from work.  Hamlin harassed them and
                 attempted to run them off the road with his truck.

                 Striker Arthur Storer:  On August 6, 1987, as a
                 Striker Arthur Storer
                 replacement worker exited the mill, Storer threw a

____________________

            1.  Barclay later  told an  IP employee who  investigated the
            incident  that prior to this incident, a number of boats full
            of strikers had pulled up in front of his home, and had blown
            air  horns,  cursed,  and  threatened  him  and  his  family.
            Barclay  also claimed that the boats fired a projectile which
            broke a window in his home, spraying glass over his son.

                                         -7-
                                          7

rock at her car, kicked the car, and then jumped on
                 the car's bumper.

                                         IV.
                                         IV.
                                         ___

                                      Discussion
                                      Discussion
                                      __________
          A.  Disparate Treatment  
          A.  Disparate Treatment  
          _______________________

                      The Union's principal contention is that IP engaged

          in unlawful disparate treatment by discharging the five strikers

          listed above for engaging in strike-related misconduct which was

          less serious than misconduct committed by non-striker Barclay,

          who was merely warned.2  The Board agreed with the Union as to

          Bilodeau, but not as to the other four strikers.  We agree with

          the Board's conclusions. 

                      Pursuant to   7 of the Act, "employees are granted

          the right to peacefully strike, picket and engage in other

          concerted activities for the purpose of collective bargaining." 

          NLRB v. Preterm, Inc., 784 F.2d 426, 429 (1st Cir. 1986). 
          ____    _____________

          Section 7 also allows employees the right to refrain from these

          activities if they so desire.  Id. 
                                         ___

                      "At the end of an economic strike, an employer,

          unless otherwise justified, must reinstate striking employees,

          lest their discharge penalize the employees for exercising their

____________________

            2.  To prove  disparate treatment, a  discharged striker need
            only show that his/her misconduct was less  serious than that
            of one non-striker  who was  not discharged.   Here, the  ALJ
            deemed  the conduct of Barclay to be  the most serious of the
            non-strikers  who retained  their  jobs.    Having  carefully
            reviewed the record,  we agree with  the ALJ's conclusion  on
            this question.  Accordingly, we use Barclay's conduct  as the
            benchmark  against which  to  measure the  Union's  disparate
            treatment claims.

                                         -8-
                                          8

right to strike under   7 of the Act."  Associated Grocers of New
                                                  _________________________

          England, Inc. v. NLRB, 562 F.2d 1333, 1335 (1st Cir. 1977).  It
          _____________    ____

          is well established that an employer is justified in discharging

          a striking employee who engages in serious strike-related

          misconduct.  Preterm, 784 F.2d at 429; Associated Grocers, 562
                       _______                   __________________

          F.2d at 1335.  Behavior that "reasonably tend[s] to coerce or

          intimidate non-striking employees in the exercise of their right

          to refrain from strike activities" constitutes serious strike-

          related misconduct and is cause for discharge as a matter of law. 

          Preterm, 784 F.2d at 429 (quoting Clear Pine Mouldings, 268
          _______                           ____________________

          N.L.R.B. 1044, 1047 (1984), enforced mem., 765 F.2d 148 (9th Cir.
                                      ________ ____

          1985)).  See also General Indus. Employees Union, Local 42 v.
                   ___ ____ ________________________________________

          NLRB, 951 F.2d 1308, 1314 (D.C. Cir. 1991) (similar); Newport
          ____                                                  _______

          News Shipbuilding & Dry Dock Co. v. NLRB, 738 F.2d 1404, 1408
          ________________________________    ____

          (4th Cir. 1984) (similar); Associated Grocers, 562 F.2d at 1336
                                     __________________

          (stressing the objective nature of the test).  

                      Importantly, however, an employer may not knowingly

          tolerate misconduct by non-strikers that is at least as serious

          as, or more serious than, the misconduct of strikers whom the

          employer has discharged.  See Garrett R.R. Car & Equip. v. NLRB,
                                    ___ _________________________    ____

          683 F.2d 731, 740 (3rd Cir. 1982) (holding that an employer

          committed an unfair labor practice where it knew non-striking

          employees were equally culpable of misconduct but chose to

          discipline only strikers).  In determining whether an employer

          has discriminated against striking employees, a one-on-one

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                                          9

comparison between the acts of misconduct committed by the

          strikers and those committed by non-strikers is appropriate.  See
                                                                        ___

          generally id. (comparing behavior of strikers with that of
          _________ ___

          employees who were not discharged).3  

          1.  Strikers Chicoine, Flagg, Hamlin and Storer
          1.  Strikers Chicoine, Flagg, Hamlin and Storer
          _______________________________________________

                      The Board determined that, because the misconduct of

          strikers Chicoine, Hamlin, Flagg and Storer was more serious than

          the misconduct of non-striker Barclay, IP's decision to discharge

          the four strikers did not constitute disparate treatment. 

          Essentially, the Board found that Barclay's behavior was

          provoked, and hence less serious than the strikers' misconduct,

          which, in each instance, was instigated by the striker. 

                      We think that substantial evidence exists in the

          record to support the Board's finding that Barclay was provoked. 

          Before confronting the strikers, Barclay had been harassed at his

          home by a group of strikers.  As we have observed, there was

          evidence suggesting that strikers had blown air horns from their

          boats in front of his house, shouted obscenities, threatened him,

          and fired a projectile through his window, showering his son with

____________________

            3.  IP  insists that  because  Barclay's  misconduct was  not
            similar to any of the acts committed by the five strikers, it
            is  not  appropriate  for  disparate  treatment  purposes  to
            compare their behavior with his.  However, only the rarest of
            disparate treatment cases would involve identical allegations
            of misconduct.   Adoption of IP's  position would, therefore,
            effectively  foreclose  disparate treatment  analysis  in the
            vast majority of these kinds of cases.  Because we  find such
            a  requirement  to  be   unduly  stringent,  we  reject  IP's
            argument. 

                                         -10-
                                          10

glass.  It was only after these violent threats and acts that

          Barclay confronted a group of strikers with a baseball bat and

          angrily threatened them.  

                      In contrast, the record is devoid of evidence

          suggesting that the actions of strikers Chicoine, Flagg, Hamlin

          and Storer had been provoked in any way.  Although we do not

          condone Barclay's conduct, we think the Board's conclusion that

          his provoked behavior was less egregious than the unprovoked

          actions of the four strikers was a reasonable one under the

          circumstances.  Accordingly, we uphold the Board's decision

          rejecting the disparate treatment claims of Chicoine, Flagg,

          Hamlin, and Storer.

          2.  Striker Bilodeau
          2.  Striker Bilodeau
          ____________________

                      The Board also adopted the ALJ's conclusion that the

          misconduct of Barclay was more flagrant than that of Bilodeau,

          and that IP therefore acted unlawfully by discharging Bilodeau

          but merely issuing a warning to Barclay.  The ALJ's conclusion

          was based on his finding that (a) Barclay's threat was one of

          physical injury and was therefore more serious than Bilodeau's

          threat to property, and (b) Bilodeau's threat was "less than

          explicit."  

                      The major difference between the conduct of Bilodeau

          and Barclay, in our view, is that Barclay made his threat with a

          baseball bat in hand, and thus possessed an immediate ability to

          act on the threat.  Bilodeau, on the other hand, made his threat

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                                          11

while standing in the road in front of the replacement worker's

          house, with no apparent ability or intent to immediately carry

          out his threat.  Record evidence, therefore, supports the ALJ's

          conclusion that Barclay's behavior was more egregious than that

          of Bilodeau.  See Associated Grocers, 562 F.2d at 1336
                        ___ __________________

          (explaining that courts should evaluate threats in light of all

          the surrounding circumstances).  

          B.  Miscellaneous
          B.  Miscellaneous
          _________________

                      The Union raises two subsidiary arguments, each of

          which we find unpersuasive.  First, the Union argues that,

          because IP failed to obtain the strikers' first-hand accounts of

          the incidents, it could not, as a matter of law, have fashioned

          an honest belief that the strikers committed the misconduct for

          which they were discharged.  As the record reveals, however, a

          number of eye-witnesses were present at each of the incidents. 

          In fact, two of the episodes were captured on videotape. 

          Further, evidence in the record supports a finding that IP relied

          on these eye-witness accounts and the videotape.  Thus, although

          IP's understanding of the events would undoubtedly have been

          fortified by interviews with each striker, we cannot say that the

          failure to conduct striker interviews, given this direct

          evidence, rendered their decision to discharge those strikers

          unlawful.  

                      The Union also argues that IP condoned the strikers'

          conduct when it sent each striker a form letter on February 1,

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                                          12

March 24, and September 23, 1988, outlining the reinstatement

          rights of striking employees.  Condonation exists only when clear

          and convincing evidence is present showing an employer's desire

          "to forgive" the guilty employee for the misconduct.  See Jones &
                                                                ___ _______

          McKnight, Inc. v. NLRB, 445 F.2d 97, 103 (7th Cir. 1971). See
          ______________    ____                                    ___

          also Woodlawn Hosp. v. NLRB, 596 F.2d 1330, 1341 (7th Cir. 1979)
          ____ ______________    ____

          (holding that condonation exists only "where the employer has

          clearly indicated forgiveness").  We agree with the ALJ's

          conclusion, adopted by the Board, that a form letter sent to

          approximately 1250 workers, informing the striking employees of

          their statutory right to reinstatement under certain

          circumstances, falls well short of clear and convincing evidence

          that IP condoned the misconduct of the five strikers.4 

          Accordingly, the Union's condonation argument is unavailing.5

                                          V.
                                          V.
                                          __

                                      Conclusion
                                      Conclusion
                                      __________

                      Because we find that the Board correctly applied the

          law and that substantial evidence in the record supports all of

          the Board's findings, we grant enforcement of the Board's order

          in its entirety.

____________________

            4.  Because we  agree with  the Board's conclusion  that IP's
            decision to  discharge strikers  Chicoine, Flagg,  Hamlin and
            Storer  was  not  discriminatory,  we  need  not  reach  IP's
            alternative  argument that  the  Union's claims  as to  those
            strikers are time-barred  under section 10(b) of  the Act, 29
            U.S.C.   160(b).

            5.  We  have reviewed the  remainder of IP's  and the Union's
            arguments and find them to be without merit.

                                         -13-
                                          13

Affirmed.  No costs.
                      ________   ________

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