Syncro Corporation v. National Labor Relations Board
597 F.2d 922
5th Cir.
1979
Check Treatment

*2 RUBIN, GEWIN, she disagreement Cir- arose when asked Before GEE and statement produce a financial Judges. cuit Stentz plant em- group meeting between during a GEE, Judge: Circuit He asked and outside consultants. ployees peti- to come his Corporation (the Company) her on several occasions Syncro talk out their office so that could to review and set aside an order tions differences, Finally, Hill so. which but never did Labor Relations National com- Hill while she was sections confronted Company found violated Stentz (1)2 employee names from time- 8(a)(3)1 piling Labor a list of the National contacting concerning use in by Act its cards for them Relations he had re- enforce- He her that Michelle Hill. The Board seeks the Union. told taking deny complaints enforce- about her names ment of the same order. We ceived any her do it more. and instructed not to ment. 158(a)(3) provides: Allied Workers Un- 3. International Molders & 1. 29 U.S.C. § ion, AFL —CIO—CLC. (a) practice be an It shall unfair labor employer— an finding by speeches of a were the basis These jfc »fe sfc Company vio- ALJ and the Board that (3) by regard to hire or discrimination in 8(a)(1) by threatening lated the Act section employment any or con- tenure of term employees selected to close the if the employment encourage dition of or dis- union, soliciting opposition the union courage any organiza- membership in labor campaign, Company’s aid for the anti-union tion . employ- by creating impression 158(a)(1) provides: § 2. 29 U.S.C. union activities were under surveillance. ees’ (a) practice for It shall be an labor unfair findings challenge Company these employer— in this court. with, restrain, (1) or coerce to interfere rights employees in the exercise of title; guaranteed of this section 157 hostile discharged by on toward Hill was and found that 5,1977. April testified that he made the stated reason for the complaints the decision on the of merely pretext.6 Relying based on its conclu- employees Marilyn Patsy Walker sion that Walker and did not take separate Hayes, who related threats made seriously, the threats which the Board con- against gave them Hill. Each state- sidered to be consistent with the atmo- *3 ments to the and later testified sphere plant tire-slashing where that, termination, Friday on the before her common, jokes were and on the lack of an sign Hill had asked them to a union card. investigation extensive charges, of the they When refused she threatened slash Board discharge found that Hill’s was moti- their tires. A male employee also told by activities, vated her union in violation of Stentz of the threats the following Monday 8(a)(3) (1) section and of the Act. The requested but anonymity because of his Company was ordered to reinstate Michelle reprisals. fear of making admitted the Hill with pay. appeal back On the Compa- statements pushing and also admitted ny argues that this supported decision is not Walker into a bathroom stall in an effort to by substantial evidence. card; get sign her to a union she main- begin by reciting the We familiar tained, however, she only “cutting was that, principle showing absent a of anti-un up” with the two women and that she made motivation, employer may ion discharge against no threats any employee. fellow cause, an employee cause, for good or bad explanation Her joking was that “threats” or no g., Mogul cause at all. E. Federal slashing of tire were plant common in the B., Corp. v. (5th N. L. R. 566 F.2d 1245 Cir. after Stentz made his speeches.5 anti-union 1978); B., Brass Mueller Co. v. N. L. R. Garrett, Another employee, Sara also testi- (5th 1977). cases, F.2d 815 In discharge Cir. effect, fied to this but both Walker and employer motivation of the is the con Hayes expressed their fear of the threats trolling factor. Mueller Brass v. N. Co. L. and testified that believed them to be B.,R. supra, and the burden is on the Board genuine. prove that anti-union animus was the The ALJ found that the Company did not motivating discharge. cause for the 8(a)(3) violate (1) sections of the Act in R. B. v. Corp., Florida Steel 586 F.2d 436 discharging Michelle expressly Hill. He (5th Moreover, 1978).7 improper moti discredited the testimony em- lightly. vation is not to be inferred N. L. R. ployees joked about tire slashing and also McGahey, (5th B. v. 1956). 233 F.2d 406 Thus, discredited Hill’s denials. he deter- mined that she against had made the treats order, appeal of a Board we Walker although record, the must findings enforce its if the tak Company clearly knew of sym- whole, Hill’s union en as a shows substantial evidence to pathies activities, discharged she was support findings. those Universal Camera just for however, cause. The Corp. disa- v. N. L. R. U.S. S.Ct. greed and was “unable to (1951). Where, here, conclude that Hill 95 L.Ed. 456 as was discharged threatening employees the Board accept findings does not rather than ALJ, for her union activities.” The appeals the court of must examine emphasized Board that Stentz had exhibited findings the evidence and of the Board employees, shown, 5. Hill testified that Stentz told his 7. Where cause for the is alia, victory people inter that a union meant the mere fact that anti-union animus existed on getting being shot and tires part not, slashed. The ALJ employer without expressly testimony discredited more, and credit- make unlawful. speeches, ed Stentz’ version of his which in- provide Board must a causal connection be- inflammatory cluded no such references. The employer tween the anti-union impliedly Board credited Hill’s version. and the N. L. R. B. v. Florida Steel Corp., 586 F.2d at 448. apparently 6. The Board also credited Hill’s ex- planation only joking. that she was Hill was acts for which to the proximate Board it would if the critically than more testimony and Hill’s discharged. The latter agreement. N. L. were in the ALJ were only joking that she explanation Center, Inc., 576 F.2d Medical B. v. Florida ALJ, a factor by expressly discredited 1978). is not bound The Board (5th Cir. discharg- before must consider. we made credibility determinations Hill, arguable oppor- had forborne one ALJ, Bogart Sportswear N. L. R. B. Nor can tunity, the timecard incident. (5th Co., Manufacturing tire-slashing doubt that serious there be makes a con when the Board 1973), but threats, physical assault combined with choice, superior advan credibility trary compel in earnest done in this area should be the ALJ tage of card, ample furnish would sign union determining whether weighed as a factor imagination discharge. Scant grounds supports the conclusion substantial evidence ruling what would required to envision is Manufacturing Co. Dryden the Board. on finding of such a shoe have followed the *4 (5th 1970).8 B., 421 F.2d 267 v. N. L. R. assault, super- say, by a the other foot: an mind, we principles in With these organizing her arising visor on Hill out of close, we question is although find passed to be off as sought activities —later conclusion that the Board’s must overturn evaluating the Here all turns on playful. anti-un fired because of Hill was Michelle she encoun- of Hill and those truthfulness cause. rather than for ion motivation earnest, discharge her tered. If she was in that Hill threat the record It is clear from not, may it If she was proper. have if un employees with violence ened fellow “playfulness” is wrongful, though such been Indeed, she signed. were riot ion cards threat to playful on the order of a about into she shoved one admitted that out little about this We can make shoot. obtain a in an effort a bathroom stall record; Board can have a cold from frightened were employees The signature. the Board’s ex- no more. Whatever made serious the threats to be perceived and more eso- points in the finer pertness manage report Company’s to the enough to be, may we settings of labor situations teric was cause for This conduct of Hill ment. evaluating credibility capable of are as Act not insulate an discharge; her testimony as it is. of witnesses’ record engaging employee from demeanor, determinations, ap- As to such employee relations. disruptive of conduct testifying tell manner pearance, and Atlanta, Sutphin R. v. I. V. B. Co. — these and all of heavily. The ALJ saw 1967) Inc., (5th (employee F.2d 890 the assault threats and that the determined physical violence discharged after threat of motivating cause were were serious and employee). to fellow proximate discharge. All the other of Hill’s finding circumstances, im- em- to sustain a the threatened The evidence such as discharge consists of motive in the the incidents Stentz’ proper ployees’ reporting Stentz, forbearance, Despite made bear him out. speeches the anti-union initial largely innocuous we are unwill- unpleasant but deference to the several our one who rule that ing lay Hill and Com- down the clashes between which, seriously in- if pro-union engages Hill’s activi- in actions knowledge of pany’s tended, only need clearly justify ties, that the entire testimony and, though even they playful were slashing. Little of this is claim joked tire about testimony gives court, Brown, credence aminer Judge writing 8. Chief expressly or previous has found —either decision: which he this in a addressed situation untrustworthy, inherently implication be preeminence Examiner’s conclu- —to The of the substantiality tenuous is of that evidence regarding probity does not testimonial sions best. at that either amount to an inflexible rule 8, (5th B., invariably v. N. L. R. Ward reviewing court must Board or Corp. 1972); v. N. L. decision, effectively see also Universal Camera thereby nulli- defer to his 496, judicial U.S. at 71 S.Ct. fying review. administrative or either second-guesses the Ex- But when the Board previous Hill had encounters concern- serious, hearing officer finds were balance, conclude, we with prevail. her union activities. In one instance evidence lacks that difficulty, out that this before she was dis- less than two weeks substantiality necessary missed, for us to sustain copy Stentz told not to names finding improper the Board’s of an motive employees from record cards. Another time, for Hill’s N. L. R. B. v. I. V. See Hill asked for financial state- Stentz Atlanta, Inc., Sutphin supra. by outside meeting ments at a attended Co. — that he consultants. testified felt DENIED.9 ENFORCEMENT ques- showed that Hill incident honesty misjudged tioned his or had him. RUBIN, Judge, ALVIN B. Circuit dis- senting. supervisors fired Hill almost immedi-

In this an order of the case we review ately employees complained that after two solely Relations Board National Labor Hill had threatened them. Stentz did not supported by determine whether it is sub- investigate by questioning other witnesses Corp. stantial evidence. Universal Camera present when Hill threatened one who were NLRB, 1951, U.S. S.Ct. complaining employees. He did not majority 95 L.Ed. 456. The concludes that explanation seek an from Hill about either properly sup- the Board’s decision was not supervisor actually threat. The who filed ported. My say question brethren that the were, Hill did not tell her who her accusers close, agree, persuaded is and I but I am specifically why being she was dis- the record contains substantial evi- charged. *5 support dence to the Board’s decision. place the dismissal threats and took notes, As the it majority is a familiar at a when the union was in the midst time principle showing absent a of anti-un- organizing campaign of an hotly that was animus, employer may discharge ion an an opposed by company. If the atmo- cause, cause, employee “for or bad or sphere had been less tumultu- g., no cause at all.” E. Mueller Brass Co. v. ous, compa- it is difficult to believe that the NLRB, 1977, 815, 819, quot- F.2d ny disciplined would have an so 1956, ing McGahey, NLRB v. F.2d summarily discipline or that the would have 406, agree majority’s 413. I with the find- record, been so severe. the basis of this just that Michelle Hill’s conduct was a supervisors the Board’s conclusion that However, cause for her even if upon prime seized a chance to eliminate a real, it is assumed that the threats were as union activist from the rank and file is found, Judge the Administrative Law I can- Therefore, sufficiently supported. I must agree with the conclusion that this was respectfully dissent. dismissal, the sole reason for her substantial sup- evidence does not exist to

port finding the Board’s there was a

causal connection between the anti-union supervisors and Hill’s dis-

charge. NLRB v. Corp., See Florida Steel 448; 1978, 436, NLRB v. O. A. Markets, Inc., Super

Fuller 5 Cir.

F.2d

At least supervisors, one of the member,

knew that Hill was a union

prime plant. union activist at the unpersuaded by Company parking 9. We are automobile the Board’s conten- accident lot, differently employee, tion that treated threatened unlike separate involving Walker, pursue incident a threat made declined to the matter. employee. occasion, following On that