*1 AGENCY, NEWSPAPER DETROIT Newspapers,
d/b/a
Petitioner
v. RELATIONS LABOR
NATIONAL
BOARD, Respondent. 04-1366, 04-1403.
Nos. Appeals, Court States
United Circuit. of Columbia
District 1, Nov.
Argued 20, 2006. Jan.
Decided *2 Vercruysse
Robert M. argued the cause petitioner. him on the briefs With were William E. Altman Gary S. Fealk. Jacob,
Fred B. Attorney, National La- Board, bor argued Relations the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy As- Counsel, sociate General and William M. Bernstein, Attorney. Senior HENDERSON, Before: Judge, Circuit * WILLIAMS, EDWARDS Senior Judges. Circuit Opinion for the Court filed Senior Judge Circuit EDWARDS. Dissenting opinion filed Circuit Judge HENDERSON.
* Judge Senior Circuit regular Edwards was in active argument. service at the time oral per- must first General Counsel EDWARDS, [T]he Senior Circuit T.
HARRY the evi- suade, preponderance Judge. dence, employee’s Agency Newspaper d/b/a motivating factor conduct was “Detroit (“Company” Newspapers *3 decision. employer’s of court for review News”) this petitions a such If the General Counsel makes Relations Labor National the of an order shifts persuasion of showing, the burden “NLRB”), and the (“Board” or Board that employer to demonstrate “to the On for enforcement. cross-applies Board place have taken action would the same Mailers Union by the Detroit charges filed protected of the in the absence of Brotherhood No.2040, International (“Union” or “Local conduct.” Teamsters, AFL-CIO the held of Board 2040”), panel a divided News, 2203014, at *3 2004 WL Detroit an unfair committed News that Line, 251 N.L.R.B. Wright (quoting 8(a)(1) §§ and of in violation practice labor 1089). Act (3) Relations National Labor of the Board the argues Detroit News 158(a)(1), “NLRA”), § (“Act” 29 U.S.C. necessary evidence lacked the substantial (3) (2000), discharging Union member by met its that the General Counsel to find Hydorn. De- striker Thomas and former prong of on the first proof of burden Agency, Newspaper troit D/B/A deci- As we read Board’s Wright Line. Union Detroit Mailers v. Newspapers certainly to be sion, Detroit seems News Teamsters, AFL- No.2040, Int’l Bhd. of find- of the Board’s three correct. None 125, 2004 WL CIO, No. 342 N.L.R.B. Hy- to show that are offered ings News”). 2004) (“Detroit 28, (Sept. 2203014 motivating awas protected conduct dorn’s that, despite found specifically Board to fire decision employer’s in the factor insubordination, act of Hydorn’s blatant supported substantial appear him to be to terminate his decision Detroit News’ evidence. part by in motivated employment argu- and oral In the Board’s brief activity, union protected dorn’s ment, however, argued that counsel Board have prove failed Detroit News implicitly on activi- Board also of this relied in the fired him even absence fourth dif- De- was treated justification the Board ordered ty. Consequently, —that to cease things, adherents who had among other than non-union ferently troit practice unfair labor of desist its offense—in the same committed Hydorn for and make whole reinstate con- conclusion as a result of his earnings he lost suffered factor his dis- in duct 800727, discharge. unlawful is not This claim articulated charge. at *7. decision discuss- of the Board’s the section It is Wright of Line. prong ing the Detroit News concluding that In however, analysis examined, in the Board’s Act, purported to the Board violated do Wright We Line. prong second set forth two-prong test apply Board’s make not know what Line, WL 251 N.L.R.B. 1980 Wright cannot where we decision. situations (1980). outlines upon basis which precise “the discern assessing whether general framework conclusion!,] reaching its rested turns em employee’s discharge requires judicial review (and meaningful 8(a)(3) .... § violates ployer motivation to the Board the case 8(a)(1)) us to remand Act. § As extension ... is- on the position of its clarification explained: Entm’t, Sports paper sue.” Palace & Inc. v. completely falls through. The buck- (D.C.Cir. NLRB, 411 F.3d 224-25 et then drags trapped insert around 2005). judgment We therefore reserve on the insert machine circuit. When this oc- the merits of the Board’s order and re- curs, a sensor shuts down the machine mand the case for further consideration until paper drag is cleared remov- consistent with this decision. and, paper the misfed if necessary, resetting the machine. I. BACKGROUND Thomas began working for De- Background A. Factual troit News when he took a part- leading The events to this case occurred position time mailroom. *4 Plant,” at Detroit News’ “North a printing way up worked his status, full-time be- facility located in Sterling Heights, Michi- handler, coming a material position he gan, a north of suburb Detroit. One of the occupied 12 years. to 15 For the most North production Plant’s functions is the part, Hydorn had an person- unblemished placement advertising supplements into record, nel earning only disciplinary one newspapers the and produced by comics notice—for absenteeism —while he was a process Detroit News. This by is facilitated part-time employee. Prior to the incident machines,” “insert which by are manned that led to his discharge August 1999, (or “mailers”) multiple “material handlers” Hydorn received no discipline other of any “operator.” and one machine kind. At points various around the insert ma- 1995, Hydorn was one of many De- chines, “heads,” there are which contain troit employees News who participated in supplements. the The advertising inserts a strike negotiations when between the drop at each head into buckets that travel Company unions, and various including in a circuit around the machine between 2040, Local Hydorn reached an impasse. the various heads. At the conclusion of was neither Union leader nor an other- circuit, the bottom of each bucket wise prominent member of striking opens drops and the section convey- onto a unit, although he did participate picket- conveyor or. This transports then the sec- Company. 1997, In February after “stacker,” tion to a a machine that readies proved fruitless, the strike the Union made the sections to together be tied placed and an unconditional offer on behalf of strikers onto trucks for delivery. Hydorn return to work. and the other Material handlers work at the heads striking permitted workers were not positioned around They the machine. are return immediately, because Detroit News responsible loading the advertising in- replacement had hired workers to take heads, serts into the may and be assigned jobs their during the strike. The striker to more than one head at a time. The replacements were retained at the end operators, who are computer stationed at a returning strike and strikers were machine, at one end of the responsible placed preferential on a hiring list. See
for directing group the work running Typographical Union No. 18 v. computer helps the machine func- NLRB, (D.C.Cir.2000). 216 F.3d tion properly. Hydorn eventually was rehired to his A common challenge faced operators position former as a material handler in occurs when a “paper drag” stops op- August years two and a half eration. This after the happens when one of the opens up buckets strike had release the insert onto ended. Prior to the resumption line, conveyor duties, but closes before the required of his to at- dollars.” by Company conducted an orientation tend Zemnickas, to this verbal responded Karen at *2. Mihalik Director
Post-Press charge night summoning official one of the management Plant assault North Local discipline Casey Leach. of the work supervisors, shift orientation, Zem- At the 2040 members. apprised and was Leach arrived When material handlers’ nickas discussed Mihalik, he informed the situation writ- supplementary and distributed duties was, fact, the material that it returning em- told the materials. She ten paper drags. An job to clear handlers’ job they they should do ployees replied that he would insolent before, may although they now had done them, that he would if meant clear than one at more upon called work be Leach suspended or fired. then be train- During this reorientation station. supervisor, Louis brought over another important overlooked one Zemnickas ing, acting post-press Monroig, who job, handler which in the material change Hydorn if he asked manager. Monroig opposed to the handlers —as required the him a given had understood that Leach it had been operators, responsibility whose order, Hydorn again stated that direct any paper drags clear past—to *5 drags, paper because he would not remove addition, rule re- the new occurred. job. Monroig then de- not his that was paper the that the nearest quired handler him to his Hydorn follow manded remove it. drag obligated was to office, Hydorn requested point at which 24, 1999, August of evening On representation. Union work, he shortly Hydorn after returned to an insert machine with assigned was thereafter, Monroig and Shortly Leach Dutka and material John fellow handler Hydorn with and Harold met in the office some of Mihalik. While operator William Sorenson, a Steward. Sorenson Union relating to what oc- the material facts fact, was, Hydorn confirmed evening dispute, are in we curred on this drags. responsibility paper Hy- to clear his assume, analy- purposes of this will in his insistence that dorn held steadfast only, that the Board’s version sis however, job, and told operator’s was the events is correct. simply that he Monroig and both Leach shift, night at about Midway through the result, Monroig it. As a would not do a.m., near the paper drag occurred 1:00 him to turn Hydorn and told suspended Hy- machine where stations at the insert Hydorn surren- his identification card. working. Dutka Mihalik dorn and were and was escort- dered his card Sorenson by calling “paper out signaled the two men plant. out of the ed it. In accor- told them to clear drag” and in- morning, Later that Zemnickas was since Dut- policy, Detroit News dance with Hydorn incident while formed about the machine, paper ka was closer Company golf outing. While attending a Dutka there- drag responsibility. was outing, met at the Zemnickas and cleared it. fore left his work station Manager, Plant Post-Press Mike North action, Hydorn, Upon witnessing Dutka’s Martin, Legal Company’s and the Senior that clear- impression who under the was Director, Relations Counsel Labor duty, ing paper drags operator’s was then Taylor. Zemnickas interviewed John then Hydorn told Dutka not to it. do Leach, had them submit Monroig and Dutka that it pointed told at Mihalik and Zemnickas did not written statements. “f_king job” was and that operator’s Mihalik, or Hydorn, Dutka. speak with paid “big f_king why got he all *1. receiving Through application After of the relevant infor- of the two- mation, again Zemnickas consulted with formula, prong Wright Line the Board Hydorn Taylor, and determined (1) Hydorn’s found that: participation in discharged. Company should be The is- the strike was a factor in his discharge sued a letter to on Au- (2) discharge, assertion gust informing being him that he was that it Hydorn regardless would have fired terminated due to his “refusal to follow the alleged antiunion animus was un- given by instructions and the direct order dercut evidence of its disparate treat- supervisor.” Letter from Mike Mar- [his] Hydorn. ment of Id. at *4. tin, Manager, Newspa- Post-Press 1999) The Board’s conclusion under the pers, Hydorn (Aug. to Thomas Letter”), (“Discharge prong Wright Appendix explicitly Joint relied on (“J.A.”) 60. First, three elements of the Union’s case. “Hydorn Board asserted that was dis- responded by filing Union formal ciplined for misconduct he did not com- grievance Company with the on September Board, mit.” According *5. grievance meeting 1999. At a held be- Detroit News informed that he 8, 1999, parties Hy- tween the on October being fired because he apologized “refus[ed] dorn for his behavior and stated follow the instructions guilty having he had been a “bad and the direct order attitude.” Br. for at 11. given by NLRB supervisor.” Id. (quoting [his] rejected Hydorn’s News nevertheless ap- 60). Letter, Discharge supra, J.A. 21, 1999, peal reiterating on October that Board concluded this was a “false” to follow the instruc- “refus[ed] termination, reason for the because *6 supervisor.” tions of his See Letter from dorn “never defied a direct order to reme- Taylor, John A. Detroit Newspapers, to dy pending paper drag,” just a hypo- a Young, Alex Detroit Mailers Union thetical one. (quotation See id. marks (Oct. 21,1999), No.2040 J.A. omitted) added). Thus, (emphasis accord- Board, Hydorn to the could not have B. The Board’s Decision to a refused follow “direct order.” failing Hydorn’s After to overturn dis- The Board also found the “backdrop” charge through grievance an internal pro- against which the discharge place took to cedure, the Union filed an unfair labor suggestive Company be of an unlawful mo- practice charge against News, Detroit al- tive. Id. at *4. The Board noted that the leging Hydorn’s discharge violated 8(a)(1) (3) “prolonged §§ Union’s strike had been of the Act. An Adminis- (“ALJ”) Judge trative Law bitter” and presided spawned over a numerous unfair labor two-day 14-15, 2000, hearing on March practice charges, and Union members Hydorn and found that discharged were forced to return to work without an unlawfully pro- “because of his union and agreement. Id. The Board contended that (June 21, tected activities.” Decision the strikers returned to working “altered 2000), slip op. at J.A. 19. Detroit News conditions,” among things, which other left appealed the ALJ’s decision to the Board. them without the benefit of their former addition, seniority system. Id. In later, years
More than four a three- Board credited allegedly comments made panel member of the Board issued 2-1 a by Monroig to upholding decision Union Steward Sorenson the ALJ’s mistake, discharged that “the strike had violation of the been their Act. surrender,’ Detroit at return was an ‘unconditional fault, and that union tioned whether Detroit News could show at the unions were everything.” Id. have the same action employees had ruined that would taken the absence of found that Detroit the Board Finally, activity. The Board concluded that “investigate fully the News failed both fell Company’s second-prong defense surrounding sus- circumstances short, because it found that Detroit News *5, at and “consider whether pension,” id. disparate treatment in disci- “engaged application Hydorn’s offense warranted Specifically, Id. *7. plining Hydorn.” at *6. policy,” id. at progressive discipline evi- replete the record with found investigation, the Company’s In terms of [Company] dence that “the treated neglected the Board claimed that than ... who guidelines” employee harshly more nonstrikers follow its “own “guidelines” These Id. discipline. engaged Id. *5. conduct.” similar formally promulgated proce- were not light findings, In of these the Board dures; rather, they alleg- the themes were ordered Detroit News to cease and desist Taylor, edly discussed John discharging otherwise discriminat- counsel, legal workshop News’ senior ing against in order to discour- employees disciplinary issues held he conducted addition, activity. age union it ordered Hydorn incident. morning prior rein- Company to offer full seminar, In the for the prepared *7 Board’s was General Counsel unable ployees, and never involved a statement establish concrete connection between Board, review Hydorn. For the Hydorn’s activity protected partic- —his further “cursory,” and was evidence his ipation in the strike from 1995-97—and also antiunion animus. Id. discharge. Company takes eventual Company’s subsequent found that exception findings each of the Board’s punishment impulsive, choice of as justification for conclu- supporting its Zemnickas did not take into account Hydorn’s protected sion that conduct was for insub- this was “first offense discharge. a factor in his ordination,” per- had good that he a whole, separately or as a Whether taken his throughout sonnel record tenure Detroit News asserts that the record evi- Id. at *6. Company. clearly shows that was fired dence Once the Board determined solely for blatant his insubordination. proving General Counsel met its burden of find Our review of the Board’s as activity served ings they are fact is limited to whether deci- substantial factor “ him, ‘supported by substantial evidence on discharge sion it then moved to ” Palace prong ques- record considered a whole.’ Line’s second
309
411
220
Sports,
(quoting
F.3d at
29
This
U.S.C.
notwithstanding,
the Board found
160(e)-(f)
(2000)).
§
But
while
that “the Respondent’s stated reason for
findings
“Board’s
respect[,]
entitled to
discharging Hydorn is false.” Detroit
they
...
must nonetheless be set aside News,
2203014,
at *5. Why? Be-
... clearly precludes
when the record
cause,
Board,
according to the
Hy-
“while
being justified
Board’s decision from
by a
may
dorn
have exhibited insubordinate be-
fair
testimony
estimate of the worth of the
25,
August
havior on
we agree with the
of witnesses or its
judgment
informed
[ALJ]
‘he never defied a direct order
”
matters within
special competence
to remedy a pending paper drag.’
NLRB,
both.” Universal Camera Corp. v.
Decision,
(quoting
11,
15).
slip op. at
J.A.
474, 490,
340
71
U.S.
S.Ct.
95 L.Ed.
argument,
At oral
the Board’s counsel at-
(1951). “Thus,
456
reviewing
‘a
court is
tempted to explain the Board’s theory:
setting
not barred from
aside a Board
“Who knows what would have
if
happened
decision when it cannot conscientiously they
actually
had
let [Hydorn] .... pro-
find that the
supporting
evidence
that deci-
cess the papers?
may
He
have agreed to
substantial,
sion is
when
viewed
do it.” Recording
Argument
of Oral
light that the record in its entirety furnish-
19:46.
es, including
body
opposed
of evidence
The Board’s claim disingenuous.
”
is
Hy-
Found,
Epilepsy
Board’s view.’
dorn precipitated the incident leading to
NLRB,
NE Ohio v.
268 F.3d
1103
discharge by
stating,
in unequivocal
(D.C.Cir.2001)
Camera,
(quoting Universal
terms, that he would not perform
spe-
456).
U.S.
S.Ct.
cific, clearly delineated duties associated
above,
As noted
the Board offered three
job.
with his
An employee
like
primary reasons for holding that the Gen-
can refuse to
follow direct
per-
order to
eral Counsel met its
proving
burden of
form specific work
pending
that is
at the
that Hydorn’s protected activity was a mo-
time the
given,
order is
or he can refuse to
tivating
discharge.
factor in his
We evalu-
perform that work when it arises in the
ate each of the Board’s contentions below.
case,
future.
In either
per-
the refusal to
form
job
the duties of
flagrant
is a
act
1. Discharge Misconduct
words,
of insubordination.
In other
in ei-
was informed
letter that
instance,
who,
employee
ther
like
his discharge was the result of his “refusal
dorn, says
perform
he will not
work that is
to follow the instructions and the direct
within the compass
assigned
of his
duties
given by
order
supervisor.”
[his]
Dis
flatly
has
defied the instructions of man-
Letter,
charge
supra, J.A. 60. It is undis
agement.
given
The orders
to Hydorn
*8
puted
Hydorn
that
repeatedly told his su
hypothetical
were not
and neither were
pervisors that he would
perform
never
Hydorn’s
Therefore,
refusals.
we find
required work. This defiance continued
that Detroit News’ discharge
notice to
supervisors’
even after the
position was
“false,”
found,
dorn was not
as the Board
Steward,
confirmed
the Union
whose
in stating
that
was fired for his
presence Hydorn
Indeed,
requested.
Hy-
“refusal to follow the instructions and the
dorn
far
say
went so
as to
that
employ
given
direct order
supervisor.”
[his]
er would have to fire him before he would
Therefore,
comply.
the discharge letter
2.
“Backdrop”
The
Discharge
stating
was accurate in
that
had
refused to follow the
.To support
instructions and di
its contention that the acri-
supervisors.
rect orders of his
monious “backdrop”
discharge
was
motive,
directly
in the final decision to
discriminatory
involved
evidence
and bit-
“prolonged
impact
Hydorn,
any potential
referenced
so
terminate
sentiments
and the antiunion
ter” strike
necessarily
that
he had on
decision was
Company super-
by a
expressed
allegedly
circumscribed.
however,
more,
these
visor. Without
The
virtually meaningless.
Progres-
Investigate
3. Failure to
and
claims
years
a half
two and
ended over
Discipline
strike
sive
return,
is
and
prior
to
the^e
supporting
Board’s final rationale
The
there
indicate that
nothing in the record to
first-prong
that
its
decision is
single
to
out
Company
for the
was reason
“thoroughly”
failed to
investi-
News both
only
negative treatment. The
Hydorn for
leading Hydorn’s
the incident
to
sus-
gate
had
offered was
evidence
discharge, thereby
and
pension
contraven-
striking
along
many
other
“picketed”
“guidelines,”
neglected
ing its own
and
to
alleged,
It
never
members.
Union
“progressive discipline poli-
adhere to its
however,
leader or
that he was a Union
Detroit'News,
2203014,
cy.”
WL
any exceptional run-in with the
that he had
arguments
*5-6. These
aré red herrings.
activity.
part of his
Company as
Union
Taylor’s
paint
Thé Board does its best to
out
singled
indicates that he was
Nothing
mandatory guidelines
installing
seminar as
to
treatment when he returned
bad'
review,
implication
disciplinary
but
is not one
evi-
And there
iota.of
work.
specious.
any
not cited
is
Board has
first-
upon
the Board
dence relied
agreed-upon
procedure
termination
be-
analysis
suggest
to
prong Wright
Company,
the Union
tween
in a
employer engaged
pattern
that the
cogent
no
puts
why Tay-
aimed at
forth
reason for
practice
negative
treatment
departure
returning
alleged
strikers.
lor’s
from his written
outline
seminar
is evidence of antiunion
made
alleged
antiunion statements
Indeed,
animus.
Detroit News was not
offer little to
by supervisor Monroig also
to
case
obliged
“investigate”
First,
it
unclear
the Board’s case.
is
way,
further,
particular
Monroig actually uttered those
whether
nothing
offers
that the employer
material
statements,
testimony support-
as the lone
investigated
have
had it
came
uncovered
ing this claim
from Union Steward
Sorenson,
differently.
Harold
who the ALJ found
be
the matter
Decision,
“very lacking
credibility.”
See
addition,
there is no evidence
slip op. at
J.A.
And while the Board
promulgated
“pro
that Detroit News
the ALJ credited Sorenson’s
*9
judgment
respond
unpro
on
how
(3/14/00),
Monroig’s
Tr. at 203
J.A. 355.
tected,
insubordinate behavior
those
alleged passing comments to Sorenson
employer.
recognized
It is well
of
hardly
“backdrop”
constructed a viable
lawfully
employer
that an
is free to
run
against
which
assess the
dis-
cipline Hydorn.
of
Finally, Monroig
pleases.
its business
it
This means
employer may discharge
that an
an em-
even those who defied multiple direct
reason,
reason,
ployee
good
for a
a bad
orders or had been insubordinate
pri-
on
reason,
long
or no
so
as it is not for an
or occasions.”
unlawful reason.
at *7
First, beginning the of its Because we not know law, applicable decision, the summarizes make of the Board’s we remand the Board as follows: clarification further con the case for remand, must the Board considers when sideration. On the Board
The elements employer’s determining suggest con- the explain whether first whether evidence discriminatorily are motivated discipline duct was treatment is disparate in discriminatee’s alleged the generally among meant to the factors the Board activity, employer knowledge concluding consider in the General union activity, animus.... of demonstrating Counsel met burden of Board certain circumstances the Under that antiunion animus was a infer in the absence of direct will animus Company’s discharge Hy- factor in of the may be inferred evidence. That particular, dorn. the Board must ex the as a whole. The Board record plain how this evidence satisfies the bur that evidence has stated of further carries. den that the General Counsel to disparity is blatant sufficient Second, if the Board meant include dis prima case discrimination. facie of in parate discipline analyzing in treatment 2203014, at *4 Line, Wright the Board prong of the (internal quotation citations and marks must consider whether still reach added). omitted) (emphasis Although the light the result of this court’s same not cite “blatant explicitly Board did holding findings its other three are showing the factors disparity” as one of substantial evidence. supported pursuant to un- employer that the acted express opinion no on We the substantive dismissing Hydorn, it motivation in lawful validity dispa Board’s findings on recog- Board is nonetheless clear may amplify rate The treatment. Board disparate disciplin- nized that treatment necessary point as on remand. might factor. ary actions be a judgment We offer no on the correct Second, decision, half of the the latter result in this case. Board must make dealing prong Wright of with the second this determination first instance (and employer’s proof), burden of Line note, however, remand. We do that the General the Board found that “the Counsel judg- Board ifmay, appropriate, change its significant evidence dis- produced has ment on reconsideration and dismiss the Id. at *7 parate (emphasis treatment.” unfair practice charges. labor added). this, It is unclear what to make of to fathom certainly why it is hard III. Conclusion point this same failed to make in its Board foregoing reasons, For is the case prong Wright of the first Line. analysis hereby further remanded Board for draftsmanship or Poor inadvertence clarification. It is also possible explanations. possible So ordered. Board made a tactical that the decision disparate treatment leave discussion HENDERSON, KAREN LECRAFT until half of the the second dissenting. Judge, Circuit because, arguments, analysis of all its it is majority has to remand this decided affir- pertinent the most ultimately case to because it reason, mative defense. Whatever “do[es] concludes that not know what misfired, analysis cur- and its Maj. op. make of the Board’s decision.” rently sufficiently constituted is clear This, meticulously pages review. after six meaningful allow
313
detailing
inadequacies
petition
the
that decision. News’s
for review. Accordingly, I
(“The
id. at
claim is
respectfully
309
Board’s
disin-
dissent.
See
(“These arguments
id. at 310
genuous.”);
The Board
did
plainly
order
not consider
herrings.”);
the
id. at
Board]
red
[of
disparate
evidence of
treatment during the
(“In short,
reasons
the three
relied
311
step
Wright
first
analysis;
Line
justify
by
the Board to
its
upon
“Thus,
written,
at least as
the Board’s
the
met its burden
General Counsel
decision does
present
not
substantial evi-
Wright
the
prong
under
Line are
support
dence to
the conclusion
evidence.”);
supported by
substantial
dorn’s protected conduct was a motivating
(The
at 311
to meet
id.
“fail[s]
factor in
discharge.”
(emphasis
his
Id.
in
necessary
support
threshold to
a conclu-
however,
original).' My colleagues,
do not
sion that antiunion animus was a motivat-
take the
its word
Board at
and instead
Hydorn’s discharge.”);
factor in
id. at
uncover ambiguity from two
in
sentences
(“[T]he
pres-
does not
311
Board’s decision
5,000
them,
opinion.
Board’s
word
To
...
In this cir-
ent substantial evidence
general
Board’s
observation that “evi-
cumstance,
normally
we would
reverse the
disparity
dence of a ‘blatant
is sufficient to
decision,
giv-
Board’s
because
reasons
support
prima
case of
facie
discrimina-
'
by
support
”
en
Board do not
result
tion,’
coupled with one sentence in its
reached.”).
correctly
But it
charac-
earlier
discussion of Wright
step two,
Line
ren-
order, namely
terized
Board’s
“the
ders the Board
“not sufficiently
order
Board misfired.”
at 312.
In other
meaningful
clear to
for
allow
review.” Id.
words,
wrong.
the Board’s decision is
concluding, they
312. In so
accept the
duty
grant
is to
happens,
When
our
post
Board’s
hoc rationalization for its ana-
petition
pure
simple.
review
lytically flawed decision.
agency
have no
an
We
warrant to allow
No principle is better-settled in adminis-
order,
patch the holes in an insufficient
trative law
we are
uphold
than
an
much less to “amplify
necessary
... as
agency
only on reasoning
order based
fair-
id.,
remand,”
validity”
the “substantive
ly
agency
stated
the order under
critical
finding,
its
id. While
certain
Chenery
review.
Corp.,
See SEC v.
318
limited
we
circumstances
have remanded
80, 88,
454,
U.S.
63
mination occurred (2) animus; according misconduct evaluated anti-striker Hydorn’s discharge was employees for applied reason same standard stated to the (3) to follow false; failed Company engage not in activities.” who did pro- investigative disciplinary sentence, own Following this Id. at 305. 342 Newspaper Agency, Detroit cedures. discussed the General Counsel’s dis- Board 4-5, 2004 slip op. at WL No. N.L.R.B. Id. It treatment evidence. ulti- parate (2004). pri- of a That its 2203014 News mately concluded that Detroit “had of on evidence ma case based relatively lax towards insubordi- facie a attitude supported treatment further disparate is non-strikers, those who nation even de- case, summary prima of the by its facie had multiple direct orders or been fied which, dispa- again, any mention from prior occasions.” Id. The insubordinate by its ab- is conspicuous rate treatment Board did not relate this evidence Furthermore, General Counsel sence. step case prima but instead facie treat- disparate no evidence presented complete analysis, which makes sense two case prima litigating in ment facie the Company’s in relation to rebuttal. the ALJ.1 before assuming Board’s discussion of Even majority how discerns I fail to see con- disparate properly treatment could be it cites from the ambiguity two sentences having as been directed sidered unambiguously ar- light of the Board’s showing stage, showing prima facie justifications for its ticulated unsupported nonetheless be sub- id., finding, the sen- step one whether that, record reveals stantial evidence. The taken viewed in or tences are isolation worst, Detroit inconsistent in News was a The first contains together. sentence employees; disciplining insubordinate in- in an disparate treatment reference accurately, it more manifests that com- troductory paragraph listing various differently no non-strik- was treated Id. at showing. ponents prima of the facie engaged high-hand- ers who behavior isolation, boilerplate; it classic is Board, Hydorn’s. According to the ed as and, the second sen- coupled when with produced the General Counsel evidence Board’s discus- appeal's tence that in the that, February 1997 and Novem- between disparate evidence sion treatment Company “disciplined ber 37 two, does the con- step it still non-strikers insubordination less it as clusion that considered Hydorn.” harshly difficulty than Id. The part prima showing. facie it the Board’s conclusion is that as- pri- News rebutted the General Counsel’s types sumed all of insubordination are ma case with of six non- evidence facie instances, alike.2 While 20 of the 37 striking employees also terminated News the em- simply reprimanded 305-306. insubordination. rebuttal, nearly ployee, employees one-half involved rejected the Company’s paperwork to conclude who filed late and another two noting “we unable decisions; addition, responsibility did not our is to 1. In the General Counsel nel sole complaint. allege disparate whether Counsel treatment determine the General has preponderance a See J.A. 47-51. of the evi- established discriminatory dence that animus was sub- challenged factor in tire dissenting stantial 2. The Board member reminded Newspaper Agen- ability disciplinary action.” Detroit colleagues to evaluate of their limited 125, slip op. at cy, N.L.R.B. 7 workplace imbroglios fact: "Howev- 342 No. after the Member, (2004). er, (Schaumber, dissenting) place second-guess person- it is not our
315 employees involved who would not work decision. It undisputed is emphasized overtime. The Board the fact guilty of “inappropriate behavior” too. employees suspend- the other were Indeed, admitted that he ed—not terminated —but omitted to had “bad attitude.” Detroit Newspaper mention there were strikers who had Agency, slip N.L.R.B. No. op. at *13 suspended also been terminated —for —not 2. Because attitude was sep- fact, Id. In insubordination. from 1997 to arately letter, discharge 'listed how- employees seven in all were termi- ever, the Board found the two cases dis- Only nated for insubordination. Id. one tinguishable. Nevertheless, as the record returning Hy- was a striker and that was indicates, 665-66, Taylor see J.A. consid- dorn. ered attitude as well as the evidence, The Board discounted this written statements of Monroig Leach and claiming that five of the six in- incidents in deciding to fire him.3 volved termination for single more than a majority’s decision to remand this But, act of insubordination. as the case to the Board “for elaboration” skirts dissenting convincingly Board member ex- decades of case declaring law that we can plained, the conduct of two ww-strikers uphold agency only decision upon the par Hydorn’s. was on with Id. at 308. agency. articulated rationale of the I be- discharge letter to non-striker sent lieve that the fact articulated its Sylvia only Dean referenced one incident rationale and that rationale is not sup- when she “refused to follow the instruc- ported by substantial evidence. I Because ... supervisor per- tions of [her] ] and grant Company’s petition form the work on the assigned machine review, I respectfully dissent.4 Id., Detroit [her].” News’s concern was the same with Dean as it appears
dorn: “it foregoing
you duties, willing are not to meet
responsibilities proper conduct re-
quired you your job.” J.A. 129. distinguished
The Board discharge
non-striker Daramay Usman because he
was terminated for obey, both refusal to
an order “inappropriate behavior.”
Apparently, Daramay’s “inappropriate be-
havior” was the “additional” factor that
contributed to the Company’s termination Taylor testified that Hydorn's he .took into account deciding entire course of conduct in "attitude,” Hydorn's discipline impose.”). what "[g]o which was ahead and fire me. going Because I am not forth, already 4. For the reasons set I believe paper drags] today going [clear and I am not finding the Board's that Detroit News would to do it tomorrow.” J.A. 665. See Detroit pro- have fired in the absence of 125,. Newspaper Agency, slip 342 N.L.R.B. No. activity tected sup- concerted is likewise not (Schaumber, Member, op. at dissenting) ported by Accordingly, substantial evidence. n ("No reasonably dispute one can assuming prima the Board's of a engaged Respondent in conduct deemed 'in- case supported is substantial evi- facie appropriate' in the course of his refusal dence, grant petition I would for review. paper drags. clear reasonably Nor can one holding Such a succinct would have avoided Respondent claim that majority did not consider the mistake I has made. believe notes him statement and to make whole for investiga- Taylor that an internal outlined may earnings loss he have suffered pro- “thorough” tion should be should due discrimination. subject of the investigation vide the “opportunity respond.” (quoting II. ANALYSIS Labor/Legal Taylor, John A. Issues Work- shop, Newspaper Agency (Aug. Board’s Case Under A. 1999), Workshop”)). (“Taylor J.A. 138 Prong Line’s First found inves- that Detroit News’ argues that Detroit News the Board’s tigation re- failed meet either of these analysis ad- Wright Line should have quirements, as Zemnickas’s review of the beyond the prong, vanced em- only management incident canvassed
Notes
notes discipline” that limited gressive policy it testimony “where not contradicted Hydorn. against action that could take witnesses,” by other see Detroit made clear Epilepsy We Foundation of n. *4 failed Northeast v. Ohio NLRB rely the ALJ note that did Soren- authority Board does not have [t]he testimony Monroig son’s workplace regulate all. behavior in the Second, it finding of antiunion animus. ubiquitous and it cannot function as those appears alleged statements “personnel manager,” supplanting its only made Trial were Sorenson. See