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

more than the constitutional tion to show (Element

minimum. 3 could be an affirma- COMPANY, CHICAGO TRIBUNE defense.) voluntary Petitioner, tive Now add the man- Cross-Respondent, slaughter does not alter instruction. This any of these elements or relieve the state NATIONAL LABOR RELATIONS Quite contrary, of its burden. the vol- BOARD, Respondent, Cross- manslaughter untary instruction tracked Petitioner, the elements of murder and added a fourth. Overlapping elements are common. Even carrying penalties different identical crimes Local International Brotherhood problems. do not create constitutional Workers, AFL-CIO, of Electrical Batchelder, United States Intervening Respondent. Does 91-1100, Nos. 91-1284. charging jury

the Constitution forbid overlapping or even identical offenses? Appeals, United States Court of Surely happened But that is all that not. Seventh Circuit. Flowers, if we delete all state-law issues Argued Sept. 1991. assuming that Reddick came out the way. 7,May Decided compel does not states to Natural law “manslaughter”

make a lesser included of- “murder,”

fense of rather than the other

way Lexicographers’ preference around. ranking of and “man-

for the “murder”

slaughter” binding is not on the states Constitution,

the name of the which allows quality. talismanic Flowers re-

words no jury

ceived a trial at which the found him

guilty constituting of elements murder and (40 years’ imprison-

received a sentence

ment) be meted out to one who Perhaps light

commits such acts.

Reddick the Governor Illinois should manslaughter;

commute this conviction to charged questions

such are for the officials law, deciding

with issues of state as we are not. Illinois wishes to use these instruc- If

tions, may; it whether it wishes to do so is

none of our business. (argued), L.

Douglas A. Darch Mark Keenan, Shaw, Seyfarth, & Fairweather Ill., Geraldson, Chicago, Chicago for Trib- Company. une N.L.R.B., Ill., Kinney, Chicago, Elizabeth Perlstein, Armstrong, Aileen A. Howard E. N.L.R.B., (argued), Ap- David A. Fleischer Court, pellate Litigation, Enforcement D.C., Washington, National Rela- Labor tions Bd. Jr., Ill., Chicago, Fitzgerald, E.

Robert Brotherhood of Elec. for Local Intern. Workers. MANION, WOOD, Jr.,* and

Before ROSZKOWSKI, Judges, Senior Circuit Judge.** District * ** Roszkowski, Wood, Stanley Judge J. Senior Jr. assumed senior status on Janu- The Honorable Judge ary argument District of Illi- which was after oral District nois, for the Northern sitting by designation. this case. WOOD, Jr., exceptions,

HARLINGTON rulings, Circuit minor the AU’s find- Judge. ings, adopted and conclusions and his rec- ommended order to reinstate Kaczmarek February Chicago On Trib- Tribune, pay. with back because it is (“Tribune”) discharged une Co. one of its Illinois, Chicago, petitioned located this electricians, Kaczmarek, Martin for “re- review, court for and the NLRB filed a peated company depart- violations of and cross-petition for enforcement. 29 U.S.C. policies.” mental to Tribune’s letter 160(e), (f). petitioned The Union as an § (1) specific Kaczmarek cited four incidents: support intervenor in of the NLRB. 12, suspension pay a without on October 1988, “refusing respond for to to an emer- Generally the conclusion that disci situation,” (2) gency warning a on Novem- pline discharge constitutes an unfair la 10, 1988, ber for “an unauthorized absence practice, pretextual bor that it is or the area,” your (3) warning from work a on motive, result of dual can be reached January “neglect for of duties prima showing by prepon after a a facie break,” taking (4) and an unauthorized and derance of the employer evidence that the suspension pay another January without animus, acted because of antiunion anti- vile, for “the use of obscene and Transportation union motive.1 NLRB v. profane language, and offensive and abu- Corp., 393, 103 Management management repre- sive behavior toward a 2469, (1983); 76 L.Ed.2d 667 Huizinga J. in sentative” violation of com- established NLRB, Cartage 616, Co. v. 941 F.2d pany policy. Kaczmarek had for worked (7th Cir.1991); Merchandising Southwest 1983, the Tribune since a member of was Corp. v. Local International Brotherhood of (D.C.Cir.1991); 160(c). 29 U.S.C. Be § Workers, (“Union”), Electrical AFLr-CIO expressly cause the Board did not find anti- and had been union steward since 1986. union animus and because evidence is nei actively openly campaigned He and for un- cited in the ther Board’s Decision and Or representation, ion was a union observer der nor contained in the record that would representation the election on October finding, deny such a enforce days and a few before the election ment, review, grant and vacate the order of bearing had worn a T-shirt to work the NLRB. inscription, yes.” “October 4th vote Both petitioned Kaczmarek and his union BACKGROUND (or “Board”) relief, NLRB claiming he in What is not the AU’s decision and disciplined had been discharged and then materially significant record is more than activities, because his union a violation Nevertheless, give what is. to some flavor of section 8 of the National Labor Rela- controversy we summarize the four 158(a)(1),(3). Act. tions 29 U.S.C. § in events cited the Tribune’s letter that led hearing After a at which evidence was to Kaczmarek’s testified, presented and witnesses an ad- electrician, As a Tribune Kaczmarek (“AU”) judge ministrative law found assigned Emergency Response to the discipline discharge Kaczmarek’s had Team, or, training firefighting received “pretextural” alternatively, been the re- emergency procedures, sult of “dual A conse- motive.” three-member Board, panel, appointed by quently, expected respond promptly to reviewed decision, exceptions sup- early the AU’s situations. In the porting Tribune, reported brief filed and the hours of October someone response press brief filed General the smell of in the A Counsel. smoke room. affirmed, Sweet, On of the NLRB supervisor, behalf it with Robert went to Kaczma- mark, 1. There is a limited class of cases where an Inc. Trailers, employer's inherently destroys Cir.1989) (citing conduct so NLRB v. Great Dane Inc., employee’s interest that "the Board find an establishing (1967)). argue violation without The NLRB does not this case is class, appear acted with an unlawful motive.” Es nor does it to be. working day, in the reel room to answer trouble calls that he was and the rek where According investigate. apprentice, obligated other was his him to to fol- and asked Sweet, Tribune, response journeyman’s was to tell his low a instructions. The Trib- supervisor.” shop my and see “go up kept warning effect, une Kaczmarek’s Kaczmarek, however, he re- According to noting day that one before the incident smoke, ad- he did not smell sponded that requested off, day Kaczmarek had the next supervisor, and to contact the vised Sweet although company policy, known to parties began investigating. The then Kaczmarek, required days off be fire; was no rather the odor agree there scheduled at least one week advance. heating recently turned on was due to Lastly, alleged, Kaczmarek is in the Subsequently, the Tribune sus- system. brief, words of the NLRB’s “to have used for one without pended Kaczmarek week vulgar language supervisor, to [a Ed] written, “last and final pay and issued a Cook,” shortly PM, January after 11 “refusing respond to warning” for his Tribune, According to the Kaczma- an situation.” shift; reported rek on time for his 11-PM a few minutes after On November employee 15 minutes later he and another assignment at early-man of his shift start appropriate went to the break room for a PM, eating in Kaczmarek was observed Supervisor conducting smoke. Cook was a of the fifth floor an alcove the back meeting with his in that workers room shop. The claimed electrician’s Tribune time; explained he no other room had unauthorized, taking an Kaczmarek was meeting been available for the and asked turn, lunch; he, early maintained it was did, the two to leave. but Kaczmarek One snack, no only a that he had determined argued remained and with Cook about the moment, work needed to be done at the room, thus, disrupting use of the the meet- supervisor’s permission, that he had his Tribune, ing according upset- many employees and that had done an that ting Cook’s crew to such extent he retribution, large part be- so without meeting. forced to end the Cook testi- cause the Tribune cafeteria had been clos- ought said that “I fied that Kaczmarek ing responded at 11 PM. The Tribune that together why get my shit and the fuck permission and Kaczmarek did not have smoke, and the fuck it won’t.” Ca- can’t November 4 the cafeteria had ex- Gray, a member of Cook’s crew who roline Tribune, hours to 2 AM. The tended its interrupted meeting, testi- had at the been part maintaining the alcove was not of his fied: shift, assigned area that warned work said, “Fuck, why you all [Kaczmarek] Kaczmarek for “an unauthorized absence” your canteen for can’t use the other from his work area. smoking meeting? damn This is AM, January Shortly after 6 a going to And then he was area here.” Cannizzo, noticed supervisor, shift John said, “Fuck, he shit.” go out the door and roll-conveyor light on the that an overload Initially believing someone system was lit. ready to leave getting As he was working problem, took Cannizzo fuck,” and he say, him “Mother heard was; he realized no one no action. Soon just walked out. thus, nearby room he went to the break employees, profanity includ- where he had seen three views this use The Tribune Kaczmarek, policy, ing and asked them to investi- violation of its harassment a direct action, employees and Kaczma- gate. None took two witnesses testified and discharged to call rek is claimed to have told Cannizzo Kaczmarek had been other than All supervisor. language his three to- using profane or for abusive warned, disciplined, by the subsequently supervisor. a ward neglect duty taking an Tribune for and ANALYSIS review, Upon further unauthorized break. re- dispute and our parties do not warnings: of the

the Tribune rescinded two shows that we relevant facts assigned view of the had not one of the workers been (3). pro 158(a)(1), activism is a Union complaint before jurisdiction. The have § alleges right, and the Tribune admits an cannot dis NLRB tected and operations employer, engaged exercising rights it is an charge employee for an commerce, affecting within interstate activism, by the Act. Union guaranteed Act, and, similarly, the Un- meaning of the however, impenetrable not an shield is mean- organization within the is a labor ion discharge, the Act itself “does against and (5), (6), 152(2), ing the Act. 29 U.S.C. § tenure.” give job adherents not union alleged; the (7). of the Act is A violation Stores, Inc., 697 F.2d Loy NLRB v. Food final; Act NLRB is and the of the order Cir.1983); Avecor, Inc. jurisdiction to review expressly grants us (D.C.Cir.1991), final orders of the NLRB. or enforce — U.S. —, 160(e) (f). (3), and U.S.C. §§ company may A L.Ed.2d 812 review of a Decision Judicial bad, no discharge employees good, “for initiated of the whether Order reasons, long purpose as its is not to so petition for enforcement or petition activity.” Loy Food interfere with 10(e) review, governed by sections Stores, F.2d at 801. also NLRB v. See 10(f) uphold Act: must Ass’n, Hotel and Florida Motel Southern findings are “if its factual Board’s decision Cir.1985); 1571, 11 F.2d 1579 n. 751 evidence on the supported substantial NLRB, 453, 459 Co. v. Southwire legal if conclu and its record as whole (D.C.Cir.1987). in the law.” sions have a reasonable basis Sons, Inc., 950 F.2d George Koch NLRB here, Where, discharge is as (7th Cir.1991) 1324, (citing Universal 1330 proscribed by the National alleged to be 474, 488, Corp. v. 340 U.S. Camera Act, Counsel for Relations General Labor (1951)); 29 95 L.Ed. 456 71 S.Ct. showing NLRB bears the burden the evidence, 160(e), (f). Substantial U.S.C. § animus contributed that “antiunion turn, as a relevant evidence is “such decision_” NLRB v. Trans employer’s might accept adequate mind reasonable 462 U.S. Management Corp., portation Mary conclusion.” the Board’s 76 L.Ed.2d 103 S.Ct. NLRB, 943 F.2d Thompson Hospital v. Line, (1983) 251 (citing Wright 667 (7th Cir.1991) (quotation marks 745 (1980), 662 F.2d 899 enf'd, 1083 N.L.R.B. omitted). may not While we and citations Cir.1981), (1st fact-finding displace or reason dabble (1982)); 71 L.Ed.2d simply we because able determinations conclusion, O’Hare-Midway Limousine Ser a mere NLRB v. reach a different would Inc., cursory adequate, vice, is not F.2d 695-96 Cir. ly review record, the entire 1991). consequently, must take into account The AU opposed to the “including the evidence Counsel not shown General Board have conflicting infer from Board’s view which prescribed burden. bore Koch, reasonably could be drawn.” ences length, from the some quote, We 1330; Tugs Inland 950 F.2d at section of Analysis-and-Conclusions (7th Cir.1990) (quota by the Board. adopted decision as AU’s omitted). and citations tion marks con- all the AU’s following comprises employer engages an unfair An motive and regarding antiunion clusions with, re- practice when it interferes labor evidence: supporting, strains, in the exer- or coerces position takes the The General Counsel in section 7 of the rights guaranteed cise of for the dis justification offered that the Act, “by discriminating in 29 U.S.C. § against Kaczmarek ciplinary actions employment or regard hire or tenure of Respon and that pretextural employment to or condition of any term actually motivated was dent membership in discourage [Tribune] encourage or union_” I am satisfied antiunion considerations. 29 U.S.C. any labor by Respondent, incidents position cited sufficient the General Counsel’s that justification discharge. prevail.[2] for his should ac- Turning short, first to Kaczmarek’s union In the evidence adduced at this that tivity, there can be no doubt hearing Respondent, me that convinces union official Kaczmarek was an active election, since the time of the October 4 Respondent was supporter incidents, and and that seeking out however triv- activities on behalf of the ial, aware of his upon sup- which to build a record to Union.... port Kaczmarek’s eventual Accordingly, I that fail- conclude the reasons [N]oting particularly Respondent’s assigned by Respondent discipli- for the to interview Kaczmarek ure [after nary pretextural action it took were incident], I that am convinced October the real reason was Kaczmarek’s suspended on Kaczmarek was October open, significant long-term support on behalf of the Union for his activities because, I for the Union.... conclude that there not for misconduct disciplinary one motive for the view, no “refusal to my there had been Respondent action taken and that was respond” potential an [to prompted by discriminatory, Kaczma- emergency situation3].... activity.... rek’s Union Noting particularly prior unlawful suspension of Kaczmarek on October conclude Gen- [In alternative] disciplinary prima action of eral has made out a conclude Counsel facie 15 also con- protected November 10 and November case since Kaczmarek’s treatment, disparate activity motivating undertaken factor in stitute was a Re- spondent’s discharge of Kaczmarek’s activities be- decision to him. because half of the Union. actually If the Tribune “was motivated if antiunion considerations” or activity protected “Kaczmarek’s was In context with the other miscon- factor,” no herein, motivating a the ALJ has cited consisting found of written duct evidence, or cir- finally either direct warnings, suspensions, and dis- substantial cumstantial, First, motivation.4 it January 26 of that charge, I conclude that the stated, true, as the AU the Tribune warning part a of a continu- written being Kaczmarek was a union activist ing pattern of discrimination con- knew sought representation by actively he against Kaczmarek in a effort to that ducted employee’s un- But neither an progression disciplinary of ac- the Union. provide a knowledge employer’s ion activism nor an hope justifying of Kaczma- tion evi- constitutes sufficient may of that activism rek’s While it be animus.5 finding a of antiunion profanity dence for Kaczmarek reacted with some Second, in time between union being coincidence disappointment at not able to his discipline is one 16], activity discharge or [January smoke in the break room may NLRB v. the Board consider. that this misconduct was factor cannot conclude Erectors, Inc., constitute, either Industrial sufficiently serious to (7th Cir.1983). mere coincidence But standing alone or in context with Likewise, reading de- ALJ's section a of the paragraph reads as if it 4. of the decision This finding substantial evi- that General Counsel had carried "Facts” reveals no were a nominated persuasion finding of after the Tribune the burden of antiunion a dence that would made presented its affirmative defense. As motivation. Management Transportation and our clear Line, following Wright is not the first cases farther, employ- declaring goes 5. The Act even process; step a later one. The first it is may openly express sentiment antiunion ers showing step, prima animus a of antiunion facie practice committing labor an unfair without evidence, preponderance was not a reprisal or force provided of there is "no threat taken. 158(c). promise § U.S.C. of benefit." 29 had been ALJ went on to conclude there 3. The situation, expressly but the Board no rely it did -not on that conclusion. stated charged for the reasons stated of antiunion ani- Kaczmarek is not sufficient evidence Furthermore, another, presented if unlawful mus. the Tribune even it did have mo poor Kaczmarek’s work Clearly employer, evidence that an after General tive. elec- record dated to well before the union pre shows antiunion animus Counsel indeed, tion, petition for that evidence, to before the may argue the ponderance of the Third, having election. found October affirmative defense that it would have dis of Kaczma- suspension 12th was the result charged employee event. activities, proceeded to rek’s union the AU Transportation Management, cards, self-rising gar- house of construct a 2470; O’Hare-Midway, 103 S.Ct. at findings nering support subsequent for his Because it is an affirmative 924 F.2d 692. succeeding disciplinary that each action of defense the “bears burden previous determina- was unlawful from his far as the main case is persuasion, but so preceding one or ones had tions that persuasion never concerned burden pattern activity been unlawful. While Sonicraft, Inc. v. shifts.” — animus, pattern may evidence antiunion Cir.1990), seen here is undocumented and purportedly —, 671, 112 L.Ed.2d illusory. Lastly, whatever circumstantial holding, appears the Without so it certainly there be is too re- evidence its Tribune has borne burden. mote, indeterminate and ethereal. a number of other The Tribune raises CONCLUSION three, and, given only address issues. We Therefore, enforcement, deny grant above, holding we address those our review, NLRB. and vacate the order of the cursorily. First, asks us to hold the Tribune ROSZKOWSKI, Judge, District Senior prov the Board did not meet its burden dissenting: finding supported by ing its substan tial where the AU found certain affirm the decision of the Na- evidence would and, testimony accordingly, con there- creditable tional Labor Relations Board stopped working fore, had respectfully cluded Kaczmarek from the decision dissent emergency situation on investigate the Oc court. of this 5, although there was no evidence at tober case such In an unlawful discrimination he had. The rule is clear. Credibil all that one, general this counsel of AU, by the as the find ity determinations Board has the National Labor Relations fact, given great weight. They er of are protected showing of initial burden given weight, infinite and where a are not motivating activity was a substantial supported by is not sub factual conclusion employer’s decision to take factor in the evidence it will not be affirmed. stantial against employee. Once adverse action Next, hold the the Tribune asks us to met, of Section this burden is a violation or, least, misapplied at NLRB misconstrued (3) Labor Rela of the National regard pretext and the rule of law with to (3)) (29 158(a)(1)and will tions Act U.S.C. § impermissibly the Board used a dual- employer demon unless the be found analysis pretext. to find The law of motive defense, strates, that it as an affirmative dual motive are well stated pretext and of even in taken the same action would have Line, (1980), 1083 Wright 251 N.L.R.B. protected conduct. of the the absence (7th 460 v. 648 F.2d Peavey Co. set forth in N.L.R.B. principles These Cir.1981), Transportation and NLRB v. Line, Wright A Division Wright 393, 103 Corp., 462 U.S. S.Ct. Management Cir.1981), (1st Line, Inc., 904 662 F.2d (1983). We refer the 102 S.Ct. others cited in parties to those cases and (1982), approved L.Ed.2d 848 opinion. this Management Transportation NLRB v. 402-403, 103 393, 400, Corp., 462 U.S. Finally, asks us to hold the Tribune 2474-75, 76 L.Ed.2d have dis- proved that the Tribune it would case, principles apply all In Wright The Line this evidence of hostility toward unionization is clear as finding of a violation turns is Kaczmarek’s un- cases where the fact,- activity. ion In motivation, employee no other employer including on both activity matched his level “pretext” cases and cases. “dual motive” organizational campaign. union’s case, The In a “dual motive” the adverse action timing of disciplinary against actions partly partly is based on lawful and Kaczmarek, beginning immediately after grounds. pre- unlawful The will victory, signifi- the Union’s election is also if, if, vail it shows that the lawful company’s cant as are the shifting explana- grounds alone would have led to the same discharge. tions for his company When the case, “pretext” action. In a on the other initially disciplined Kaczmarek and then hand, grounds the asserted lawful for the him, discharged it did not refer to adverse action either did not exist or were occurring incidents before the Board elec- upon grounds not relied at all. The lawful However, tion. before the National Labor alone would not have led to the adverse Relations Board subsequently, before action, finding and a formal to that effect the court it asserted additional reasons for required. is not N.L.R.B. v. Industrial Erectors, Inc., 712 F.2d given also find the stated reason Cir.1983). discharging Kaczmarek less than convinc- determining In the factual issue of moti ing. company The asserts that “the com- vation, the Board consider both direct pany pro- has a well-established rule which and circumstantial evidence. N.L.R.B. v. directing hibits profanity from Erectors, Inc., Industrial supervisors.” specific their The lan- Cir.1983). The Board’s factual guage alleged “Why to have been used was findings supported by are conclusive if sub fuck can’t smoke here?” and “You guys ought get your together.” shit It stantial evidence on the record as a whole. language seems to me that such is com- reviewing “may displace Court [not] monplace setting in an industrial such as fairly the Board’s choice between two con Furthermore, the one here. there is a seri- views, flicting though even the [C]ourt question language ous as to whether the justifiably would have made a different supervi- was even directed at Kaczmarek’s choice had the matter been before it de ” certainly language sor. The was not Corp. novo. Universal Camera threatening, and seems to have been a com- situation, any type ment on the rather than (1951). See, also, 95 L.Ed. 456 N.L.R.B. v. supervisor. of threat directed to the Co., Dorothy Shamrock Coal case, complete hearing Based on a (7th Cir.1987). disciplinary the Board found that the action determining Factors to be considered in company discriminatorily took was mo- include, among the issue of motivation oth therefore, justify tivated could not ers, hostility evidence of toward unioniza findings discharge of Kaczmarek. These knowledge tion with of the dis combined credibility part based in resolu- charged employee’s activity; timing Judge, by the Administrative Law tions action; allegedly discriminatory of adopted. It is settled that which the Board implausible shifting explanations. “[cjredibility are to be determinations ... Erectors, Inc., v. 712 N.L.R.B. Industrial Board, and the and will made the AU (7th Cir.1983). 1131, F.2d 1137 Evidence reviewing overturned court not be engaged that other who in the extraordinary circumstances.... absent same or similar conduct did not receive Moreover, findings explicit credibility are discipline significant. also similar implicitly re- unnecessary when the AU Country N.L.R.B. v. Town LP Gas Ser testimony & as evidence solves conflicts Co., 187, Cir.1982); sup- (sic) findings vice 192 fact which are of N.L.R.B., record as a ported by Gossen Co. v. whole.” Storage (7th Cir.1983). Berger & N.L.R.B. v. Transfer Cir.1982) (em- Co., 678 F.2d added) (citations omitted). The com-

phasis extraordinary circum-

pany has not shown overturning

stances that would warrant credibility here. resolutions repeatedly has held

This court agency empowered to ad-

decision of the great afforded

minister the Act is to be Taking all of these factors into

deference.1 being mindful of

consideration cases, I would

standard of review such

uphold decision of the N.L.R.B. America,

UNITED STATES

Plaintiff-Appellee, ANTZOULATOS,

Dennis G.

Defendant-Appellant.

No. 91-1306. Appeals,

United States Court

Seventh Circuit.

Argued Dec. 1991. 7,May

Decided 1992. May

As Amended 1992. Co., plenary of the record Dorothy where a review Coal even In N.L.R.B. Shamrock (7th Cir.1987), Judge might yield result. NLRB v. United Bauer a different Co., recently forth the standard of review 390 U.S. set Insurance (1968): NLRB v. Walton follows: Co., Mfg. judgment determine if the Our task is to Moreover, we "must ac L.Ed.2d 829 supported evi the NLRB if substantial credibility findings cept unless the Board’s Universal dence on the record as whole. [a] challenging es party determinations] [those Corp. Camera v. ‘exceptional circumstances'" see, [that] tablishes- (1951); e.g., 95 L.Ed. 456 Rey justify result. NLRB v. Del a different County Employers' Ass’n. Kankakee-Iroquois Cir.1986) Tortilleria, Inc., (7th 787 F.2d 1118 N.L.R.B., (7th Cir.1987); Co., Castings (quoting Steel NLRB v. Harrison Lithogra Printers and N.L.R.B. v. American (7th Cir.1984)); NLRB Cir.1987). n. 9 We phers, 820 F.2d Co., Storage Berger & expertise the Board and must defer Transfer Cir.1982). displace inferences its reasonable will not

Case Details

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

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 7, 1992

Citation: 962 F.2d 712

Docket Number: 91-1100, 91-1284

Court Abbreviation: 7th Cir.