On Application for Enforcement of an Order of the National Labor Relations Board; No. 22-CA-15278.
Stapleton and Alito, Circuit Judges and Edward N. Cahn, District Judge.*fn*
Alan Motor Lines, Inc. has petitioned for review of an order of the National Labor Relations Board holding, inter alia, that the company violated Section 8(a)(1) and (3) of the National Labor Relations Act by refusing to rehire an employee because he engaged in union activities. The Board has also petitioned for enforcement of its order. Because the Board's order is inconsistent with a critical finding of fact that was made by the administrative law judge and left undisturbed by the Board, we will grant the company's petition for review and set aside portions of the Board's order. We will grant enforcement of the remaining portions of the order.
A. The following facts were found by the ALJ and are not challenged at this juncture by the parties. In late September 1987, Nicholas Gaudio, the president of Alan Motor Lines, received two reports that a tractor-trailer owned by the company and assigned to Thomas Furman, a company employee, had attempted to force a motorist off the road on the morning of September 21. On September 24, the executive director of the New Jersey Motor Truck Association wrote to Gaudio regarding this incident. At about the same time, Gaudio received a telephone call from an individual who was "very excited" and who stated that he had been "run off the road" and "was almost killed."
During this same period, Furman, a former member of Teamsters Local 469, began to discuss the possibility of union representation with his fellow drivers. On September 28, he contacted Fred Potter, president of Local 469, and a meeting to discuss representation was scheduled for October 1.
On September 30, Gaudio met with Furman to discuss the traffic incident. The ALJ found that Gaudio had no knowledge of Furman's union activities as of this date. When Gaudio told Furman about the reports he had received, Furman became "very upset" and stated that Gaudio should "stand behind" him without questioning him about the incident. Furman screamed highly offensive and obscene epithets at Gaudio and ran out of the office in a rage, declaring that he did not need the job and would look elsewhere for employment.
The following day, October 1, Furman and six other employees met with Potter and signed union authorization cards. The next day, Gaudio began to question employees who attended the meeting regarding union activity. Gaudio telephoned one employee, Richard DiGangi, and asked who was the leader of the unionization movement. Gaudio also inquired whether DiGangi had signed an authorization card and stated that "whoever signed a card was being released or terminated." When another employee, Anthony Giannotto, informed Gaudio that he had signed a card, Gaudio told him that he was fired. On October 4, Furman met with Potter regarding these developments.
On October 5, picketing began outside the plant. Gaudio refused to recognize the union but eventually informed Potter that all of the employees except Furman could return to work if they wanted. Gaudio told Potter that Furman could not return because "he quit his job" and was "a troublemaker." In speaking with another employee, Gaudio again described Furman as a "troublemaker" and mentioned Furman's involvement in both the traffic incident and the union activities.
The picketing continued until October 8, when Potter handed Gaudio a letter on the union's letterhead stating that the employees were offering to return to work unconditionally. Gaudio refused to accept the letter from Potter but spoke with each employee individually outside Potter's presence. Gaudio told the employees that they could return to work if they signed a form promising not to participate in union formation. The next day, however, the company permitted all employees except Furman to return to work without signing such a form.
A few weeks later, the company and union signed a consent agreement to hold a representation election. Prior to the election, Gaudio spoke with DiGangi on several occasions and asked DiGangi to tell the other drivers to forget about the union. Gaudio stated that he would "close down the . . . place before there was a union" and that the employees would "end up just like Tommy Furman, with no job at all" if they voted for the union. The union lost the election but chose not to file any objections.
B. The present litigation was initiated when Local 469 filed an unfair labor practice charge with the National Labor Relations Board on October 5, during the height of the controversy regarding union representation. The General Counsel subsequently issued a complaint, which was amended at the beginning of the hearing before the ALJ. Citing both the company's treatment of Furman and its treatment of the other employees interested in unionization, the General Counsel alleged that the company committed unfair labor practices in violation of Sections 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1) and (3).*fn1
After a two-day hearing, the ALJ concluded that the company had engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), "by interrogating employees concerning their activities on behalf of Local 469, by threatening its employees with discharge and plant closure if they supported Local 469, by stating to its employees that it would never allow a union and by conditioning the reinstatement of striking employees on their agreeing to disclaim a desire to be represented by Local 469." The ALJ held, however, that Furman had not been unlawfully discharged. The ALJ found that Furman was not fired but had voluntarily quit during the September 30 meeting with Gaudio. Turning to the question whether the company had unlawfully refused to rehire Furman because of his union activity, the ALJ applied the test set out in Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 71 L. Ed. 2d 848, 102 S. Ct. 1612 (1982). Under this test, if the General Counsel makes a prima facie showing that protected conduct was a motivating factor in the employer's decision, the burden shifts to the employer to demonstrate that the "same action would have taken place even in the absence of the protected conduct." Wright Line, 251 N.L.R.B. at 20-21. The ALJ concluded that the General Counsel had made a prima facie showing that ...