*1 COMMUNITY WATERBURY INC.,
ANTENNA,
Petitioner-Cross-Respondent, RELATIONS
NATIONAL LABOR
BOARD,
Respondent-Cross-Petitioner. 78-4008, 943, 944, Dockets 78-4030.
Nos. Appeals,
United States Court of
Second Circuit.
Argued 1, 1978. May
Decided Oct. Turkus, D. Washington, C.
Albert H. Berman, Wall, (Thomas Marshall F. H. C., counsel), petition- for Washington, D. er-cross-respondent. B., Banov, Washington, D.
Alan N. L. R. Counsel, E. (John Irving, John C. S. Gen. Counsel, Jr., Carl L. Higgins, Deputy Gen. Counsel, Elliott Taylor, Associate Gen. Moore, Counsel, Eli- Associate Gen. Deputy B., Stillman, R.L. Wash- N. Hadley nor counsel), respondent- C., ington, D. cross-petitioner. MESKILL, FEINBERG Cir
Before PORT,* Judge. District Judges, cuit MESKILL, Judge: Circuit upon petition us This case is before enforce- cross-application and a review the National Labor ment of an order of issue is principal Relations Board. evi- whether the record contains substantial finding that dence to the Board’s 8(a)(3) of the Na- violated § Act, tional 29 U.S.C. Labor Relations one of its em- 158(a)(3), by discharging ployees. York, sitting by Port, des District of New
*Hon. ignation. District Northern Edmund Senior
Q1 Sammons, began work in parent, tioner’s FACTS Waterbury. Petitioner, Waterbury Community An- tenna, Inc., corporation and is a Connecticut system of the The actual construction Communications, subsidiary a Sammons which in Magnavox, out to was contracted Dallas, petitioner Texas. In Payne the work to Con- turn subcontracted granted was franchises from Connecti- Payne Before could Company. struction Commission, cut Public Utilities now the construction, of the survey tele- begin Authority, to Public Utilities Control build conducted to deter- phone to be poles had operate systems in and cable television to be done to what mine work Middlebury, and Waterbury, Plymouth Con- petition- to ensure pole each order required petition- necticut. The franchises in a attached manner would be er’s cable systems within five er to build all three and to federal state that would conform twenty percent least years and to build begun survey was pole regulations. This year. systems of the total of the three each Bill In named Boone. employee a Sammons system, represents which Waterbury The early September, August or late total, was start- eighty-seven percent of the and for about a heart attack Boone suffered years. in two In ed first and was finished responsibil- weeks Baker took over two im- petitioner the summer of had no 26, 1974, Baker hired September ities. On begin building Plym- mediate plans Ben Tabaka. Middlebury and systems. outh undisputed It is that Tabaka’s was system The cable television receives tele- “Baker intended Taba- temporary one: airwaves, vision signals amplifies being hired ka understood that Tabaka them, and feeds them into coaxial cable plant construction connection which them subscrib- carries to individual the work that his would end when ers’ sets. The coaxial cable is television being came he was hired to an for which “strand,” line attached to a a non-electric of a Because back injury, Tabaka end.” poles owned telephone which attached tasks, such normal perform unable to England Telephone by the New Southern poles, required of climbing telephone for the use of Company. pays Petitioner personnel, operating such post-construction poles covering by purchasing “licenses” gave Baker Ta- repairmen. as installers or sys- each. poles Waterbury about 400 The engi- construction baka title licenses; thirty-three thirty- tem included completed by Bak- Forms neer/draftsman. petitioner permit fourth was added hired indicate er at the time system Naugatuck. extend into The survey Pole Tabaka was “Needed for Waterbury system was also divided into Boone” that he was replace Bill segments purposes. five for construction pole survey “to do with telco/Permit hired segment completed, As each could pole survey drafting.” work & consist- “energized” petitioner begin could physical inspection, by ed of a Tabaka and
realize income. company employee, of each tele- telephone Waterbury sys- initial work on the pole. respect pole, they each phone With aby tem done subcontractor which what, anything, note had to be preliminary survey early performed a pole would conform done to ensure that maps indicating produced strand petitioner’s legal requirements when ca- poles which the strand telephone attached. immediate su- ble was John should In March be attached. perior was Petruzzi. Baker, manager, ar- petitioner’s general began con- November, Payne Waterbury charge and took of all rived pole survey where the About the same in areas petitioner’s operations. struction and his tele- time, Petruzzi, already petitioner’s chief was finished. Michael counterpart continued to technician, peti- phone and a former at 4. Decision of Administrative Law Blackburn of Local 42 manager ant business through survey at least pole work on the Electrical Brotherhood of International pole survey ap- 1975. The spring Workers, AFL-CIO. early in the completed pears to have been budget for 1975 summer of 1975. Baker’s March of February and Back in Tabaka be- wages for provide did not energize prepared to *3 survey year. pole As the yond July of that Baker system, of its segment the first finished, assigned Petruzzi Taba- being was including in- personnel, operational hired inspec- a “final job performing ka the During this initial repairmen. stallers and to determine whether Payne’s tion” of work relied on subcon- had also petitioner period, specifi- with it had been done in accordance order perform installations tractors to by Petruzzi cations. The was intended large staff that building up avoid survey, the final pole “as a filler.” Like More reduced later. have to be conjunction performed inspection Sep- payroll petitioner’s were added telephone company employee. with a time, October, By this 1975. tember and twelve non-clerical had a total of petitioner Tabaka first subject laying The off installers, repairmen including employees, July Septem- arose sometime between and Tabaka. ber, 1975, apparently prompted and was the fact that Tabaka had finished the work arranged a request, At Fraser’s but had never- for which he had been hired employees at a res- petitioner’s meeting of beyond the payroll employ- theless remained on the 1975. Nine taurant on October budget. At a meet- Tabaka, in the time allowed for and all nine attended, including ees office, explained Baker that ing in Baker’s cards.2 On Oc- signed authorization union mailgram costs and wanted to Baker he was anxious to cut tober Fraser sent temporary employee requested. recognition know how soon the in which with petition Petruzzi ar- an election Tabaka could be terminated. union filed later, coun- days 28. Two retained to Board on October gued that Tabaka should be responding to a letter petitioner sel sent agreed to inspection. the final Baker finish recognize the by declining to mailgram expedite this because he was anxious peti- that an election suggesting union and Peti- completion inspection. of the final filed. tion be company in ad- paid telephone tioner vance based on estimates that were “usual- hearing was held in representation A Upon ly heavy a little on the front end.” 12, 1975,to determine Boston on November actual costs completion survey, of the final bargaining unit. Tabaka appropriate calculated, expected this was could be participated. Pe- appeared with Fraser Sep- In produce petitioner. a refund for litigated question and the union titioner tember, Petruzzi about the Tabaka asked in the be included whether Tabaka should him Petruzzi told possibility of a raise. that Taba- Baker testified bargaining unit. to make such a that it was a bad time engineer/draftsman job of construction ka’s trying petitioner request because as the final as soon abolished would be explained expenses. Petruzzi hold down his best estimate completed; inspection was lay wanted to Taba- management had inspection would be com- of when the final survey complete pole February.” parties when the ka off pleted was “around keep him on should be persuaded but had been whether disputed unit; In was finished. the union bargaining the final until included October, 1975, while the prepar- supervisor, Baker September that he was a argued a rank-and- argued no allowance that he was budget; ed the 1976 made on De- In a decision issued employee. There is no evidence file wages for Tabaka. Regional Director Robert Acting saw or knew of cember to indicate super- Petruzzi was a October, found that Tabaka contact- N. Garner budget. early that Tabaka had He also found Fraser, and assist- visor. president ed James employee signed on December 1975. A tenth a card distributing paychecks, Petruzzi start- while community of “sufficient interest the union. who was discussing ed Curiously, he failed to employees.” room, came into the working adjacent in an mention the fact Petruzzi and the room where technicians’ months. expire within two objected to the discussion others were and significant A events occurred number of time. Petruzzi of the union on meeting at the restaurant on between the they get together that suggested that all 21 and the announcement October evening pro- He to continue the discussion. representation case on De- results argue the posed Fraser be invited to period, During petitioner’s cember 18. work, group After went to union view. regard- views employees sought Petruzzi’s Waterbury. Both Pe- Ro’s Restaurant occasions, ing many and Pe- but Fraser present truzzi Tabaka were A freely. few truzzi discussed the matter pros both explained not. Petruzzi meeting, after October installer days *4 union. He said a joining a and cons of sought Petruzzi out in named David Wilson them to would allow know union contract Petruzzi told Wilson he Petruzzi’s office. would occur what when raises and pay their restaurant, meeting at the knew about the be; give it would also their amount would present. he had been and Wilson said that seniority. On the other system them thought what he Petruzzi asked Wilson hand, peti- that merit raises in argued he him, Petruzzi assert- union could do for and productive would benefit tioner’s discretion he better grievances ed that could handle job security employees, while of low other occa- than a union steward could. On producers if jeopardized could be the con- sions, employees when asked about raises employees tract to make a mini- required and educational benefits discussed quota day. mum of installations each He hired, they were they Petruzzi said would existing argued wages that conditions and forthcoming not be until after again good, speculated were and he that if petitioner situation resolved because practice employees’ there were a union the being feared accused unlawful conduct. using company go to and trucks lunch time, meeting Around the same at a be- cashing company their checks on time tween Tabaka and another installer named might have to be discontinued. He Harris, John which occurred might a time have to again said that clock office, Tabaka told Harris that if com- company’s lenient installed pany was unionized Harris two likely tardiness would end. attitude toward get would laid off. Harris employees year urged employees He to wait until Petruzzi; he then went told speak join deciding a union. whether said, and he Petruzzi what Tabaka had in- side, pro-union and he argued Tabaka Petruzzi said quired whether it was true. got into a heated debate over and Petruzzi were ex- that Harris’ fears unfounded campaign. in the union Pe- Tabaka’s role deliberately plained wanting truzzi Tabaka of the union accused used installations to subcontractors protection, and Tabaka for his own having lay avoid off its own installers denied Petruzzi’s next remarks are this. surge after the initial of installations ended. by Administrative Law best described Harris, he Petruzzi also described to did Judge Benjamin K. Blackburn: occasions, employees to other on other job might Petruzzi told Tabaka that his thought he ways might which a union longer going have lasted than it change suggested the situation. He into brought Tabaka had Union practice using company go trucks to picture. He Tabaka he had reminded to lunch he said might stop, extend Taba- already persuaded Baker employees punching have to might start ka’s He he could have once. said time clock. Tabaka to do found some more work tele- important incidents after with the inspection One the more oc- the final said, complete. He morning, phone In the curred on November 1975, some construction scene, In the fall of was on the the Union now that discovered, and, according hands. was out of his matter were errors “go told him to out there Petruzzi omitted.)3 (footnote whole area.” and check the in the field January, after the decision early conducting inspec- began Tabaka then election, case, before the representation in order to of Sullivan independently tion spoke with the installers again their compared room. He the technicians’ that had been sure that corrections make union- wages with those of in a inspection were done ordered after the shop cable television and said that ized errors, found he properly. When producers low union contract benefit attention. bring them Sullivan’s productive workers. hamper practice. He did to this objected Sullivan inspection the final on Tabaka worked during being rushed not like telephone from the com- engineer with an get petitioner could inspection, first so that The amount pany named Dennis Sullivan. sooner, only to discover that Ta- its refund depended could do of field work Tabaka yet another baka had conducted availability When Tabaka of Sullivan. new errors. on his own and found field, responsibil- was not in the his normal or modi- either discontinued practice was preparation of informal ities included said, explained, “I no As fied. Sullivan updating work orders and the of various pole, I when we look at that way. said additional maps. given On occasion right going or we’re not pole going to be *5 him included the keep busy. tasks to These And, that site until it is. that’s the to leave designing plan apartment a floor for an of theory it way it worked . . . .” In building that was to be with a master fitted to possible would have been for Tabaka design antenna. He also was asked to a final” in- independent continue his “final map strand for a short extension of the joint of the spections after the conclusion system. cable He finished both television matter, practical jobs. of these extra As a inspection.4 final Ben, up, for flared he could have created work 3. Tabaka’s version was as follows: year out of his up Ben for at least a but now it’s bring said if I this busi- didn’t [Petruzzi] Blackburn, union, my job According “Petruz- ALJ hands.” to ness with the had I could of terms, half, says, you version, gives year, year so I in defensive another mean to tell me if and a zi’s couched union, boys these this the flavor of what was said.” union, my job sorry didn’t want a I have could still him I told that I The Witness: was year, year says, yes, he for a a half? He happen going it was to but that his that two, you says maybe even but he said started very terminating was and that because of trouble, says, things going this he now are to unique that we had there was noth- situation be different. prolong ing it. We were under I could do to explained, Tabaka’s testimo- As ALJ Blackburn ny guess circumstances I we an unusual set of suspect because of was somewhat pretend to understand still are and I don’t self-interest, his but because of “[h]is them but— gloss put possible strained efforts to the best you referring Judge to the Blackburn: Are testimony.” employees gave on all his Other a Mr. Petruzzi? Union situation Moffo, According different version. to Richard The Witness: Yes. said, Petruzzi “it was out of his hands —that he him, Blackburn, questioning by could have found work for but now it’s Tabaka Under ALJ 4. out of descrip- his hands.” John Harris recalled Petruz- illuminating gave following rather saying simply, system zi completed when the was “[t]hat tion of his role: that with.” David his was over view, your point of Blackburn: From that he had Wilson testified that Petruzzi “said been a come Mr. would there ever have keep creating him work for to [Tabaka] you your role time when were—when Mike, appreciate thanks, on I said [Tabaka] system finished? construction of the They talking it. said he were and Michael Would there ever have come a time when probably work could have created more system of the construction was done his him. power.” it was now out [sic] that, some- all that remained to done was Wilson, According never Petruzzi thing non-construction? might said how much work created. have been testimony It was that Petruz- Remo Ceniccola’s thing— zi has The Witness: It’s a continuous “said to since the union issue [Tabaka] appointment however, Tabaka Baker about his inspection told the end of inspect Payne appointment with and about another were so few corrections there hardly justified Department his Trans- they could with the Connecticut concerning of the between one employment. Some work conflict portation continued the end light. near a traffic began perform petitioner’s cables and Tabaka of the respon- actually bringing to do the final had work He also he said The construction two sibility Magnavox. gave Tabaka maps up Baker to date. Magnavox petitioner and which slip contract between said checks termination and a petitioner Magnavox supply lack called of work. reason for the system “as built.” In map about twelve hours Petruzzi a total of spent effect, completion, system neared after Tabaka left finish- in the six months he updated maps, came and as Tabaka unable ing up Tabaka was to com- chores function that perform more and more off, plete. Shortly before Tabaka laid per- Magnavox paying telephone asked him to check had Thus, early January, Petruz- form. sure there was no company records make zi instructed Tabaka to turn over work billing. Tabaka claimed that double Magnavox. Reed to Jack project. was a six-month Petruzzi said system would have tak- check the entire January Sullivan Tuesday, On event, any he said he had en a week. petitioner’s and Tabaka office returned check, and spot asked Tabaka for mere like and announced “acting crazy people” duplication some discovered Tabaka the final finished in- they finally had orders, called the in work Petruzzi had Baker, told this spection. Petruzzi dupli- that such phone and learned company anything he Baker asked him if be re- would not cation was common and do. Petruzzi Tabaka to consequence for bill for actu- company’s phone flected in the not, Baker decided to said that he so did not mention this did al work done. payday, the next Fri- terminate one spoke to Baker. No time, chore when January By day, checking any further appears to have done complete that construction was so actual left. phone bills after Tabaka Payne, head of the construction Robert *6 subcontractor, individual from January held on The union election was remaining the scene. that on including employees, 19. Twelve Payne’s employees About fifteen and son voted, by eight a vote of the union lost and project had left before Tabaka was prac- labor to four. The union filed unfair discharged. January charges against petitioner tice 20, hearing conducted before 1976. A 9, January Baker’s morning On of decision, in ALJ Blackburn June. secretary gave checks. He Tabaka two the petition- that ALJ concluded on, Blackburn she going asked what was and took by Act 8(a)(1) er had violated explanation. § Later in them back without engag- creating impression that it day, appointment Tabaka made an with employees’ of its meet- ing in poles following surveillance Payne inspect some from em- later, soliciting grievances its ings, by called Tabaka into week. Baker Still threatening employees let being go ployees, his office told him was benefits, complete. discharge, with loss of and more because the final Yes, say So, your point The Witness: I would so. Judge Blackburn: from —as Okay. concerned, you ongoing Judge you Blackburn: had an far as are But, thing. always it’s a continuous be some- The Witness: because there would Thus, thing final” that done it would seem that the term “final had to be in connection poles inadequate con- that would what Tabaka the —with the cables on the describe require— to be. Sullivan’s denomi- sidered his function final, And, “final, final, always new Witness: there nation is more accurate: final, final, final, inspection.” construction. —you Blackburn: there to at it. look 96 300, 311, 85 Building NLRB, v.Co. 380 U.S. working Each of
onerous
conditions.
these
Thus,
964,
(1965).
L.Ed.2d 855
13
on the
statements made
S.Ct.
was based
various
consistently construed
“have
October,
the courts
between
range of
unscathed a wide
to leave
analysis
section
January,
lengthy
1976. After a
legitimate
actions
to serve
employer
taken
surrounding
the facts and circumstances
fash-
significant
interests in some
business
Blackburn
discharge,
ALJ
con-
committed,
ion,
may
though the act
even
that
had failed
cluded
General Counsel
Id.,
discourage
membership.”
tend to
petition-
proving
sustain
burden of
Telegraph
citing
Mackay
Radio &
8(a)(3)
er had violated
of the Act because
§
333, 347,
82 L.Ed.
Co.,
58
304 U.S.
S.Ct.
the record
a whole did
considered as
not
(1938); see
Busi-
1381
NLRB v. Advanced
show
Tabaka would have been em-
(2d
Corp.,
F.2d
464
Cir.
ness Forms
by petitioner
January 9
ployed
beyond
Laughlin
1973), citing NLRB v. Jones &
for his union
In view
activities.
1, 45-46,
Corp., 301
8(a)(1) violations, however,
S.Ct.
a new election
Steel
§
(1937); NLRB v. Dorn’s Trans-
any
980, 986,
term or
839
condition
13 L.Ed.2d
NLRB,
103,
301
encourage
membership
or
U.S.
discourage
any
Press
Associated
v.
650,
(1937).
organization.”
158(a)(3). 132,
labor
29
L.Ed. 953
See
U.S.C.
57 S.Ct.
81
NLRB,
347
provision
general pol-
supra,
Act’s
v.
This
reflects the
Radio Officers’ Union
general rule is
icy
permit
freely
Although
“to
to exercise
at 43.
workers
U.S.
unions,
right
join
to be active
the burden
with the General
or
rests
members,
intent,
passive
prove discriminatory
it is
joining
or to abstain from
Counsel to
any
imperiling
union at all
with it
without
their
clear that “some conduct carries
the em
right to a
NLRB v. Milk
livelihood.”
Driv-
‘unavoidable
which
consequences
338,
Dairy
ers &
531
must
Employees,
ployer
Local
F.2d
foresaw but which he
1162,
(2d
1976), citing
1163
Cir.
Radio Offi-
‘its own indi
have intended’
thus bears
”
39-42,
intent,’
NLRB,
17,
cers’
v.
Dane Trail
Union
347
74 cia of
U.S.
NLRB v. Great
323,
1792, 1797,
ers, Inc.,
26, 33,
S.Ct.
(1954).
97 1971); v. cases, see Western Exterminator Co. involve conduct of an such which NLRB, 1114, or “inherently discriminatory (9th destructive Cir. F.2d 1117 n.2 565 nature,” NLRB Corp., 1977). v. Erie Resistor su- 228, 1145, at
pra, 373 U.S.
83 S.Ct.
partial
complete
If
motivation
were
employer
justify
burden is on the
test,
only issue
us would be
then the
before
“
by
‘legitimate
showing
conduct
and sub- whether
is substantial
on the
there
evidence
”
stantial
v.
justifications.’
business
NLRB
support
conclusion
record as a whole to
375, 378,
Co.,
Fleetwood Trailer
389 U.S.
88
discharge
partly
motivat-
that Tabaka’s
543, 546,
(1967),
614
quot-
19 L.Ed.2d
S.Ct.
If
ed
behalf of the union.
activity on
Trailers,
Inc.,
ing NLRB v.
Dane
Great
issue,
then its resolution
this were the
34,
supra,
Lizdale
523
(2d
1975);
case,
980
v. Advanced
Counsel
Cir.
NLRB
not even the General
instant
Corp., supra,
justifications
474 F.2d at
are
Business Forms
suggests
petitioner’s
463-64;
Corp.,
situation,
v.
404
NLRB
Pembeck Oil
where
pretextual.
In the latter
105,
(2d
1968),
Cir.
vacated on
F.2d
109-10
valid
both
was motivated
employer
sub nom. At-
grounds
and remanded
is
reasons,
rule of causation
and invalid
Works,
NLRB,
las
Inc. v.
395
Engine
U.S.
example will illus-
simple
A
indispensable.
828,
2125,
(1969);
737
23 L.Ed.2d
dis-
employer
an
why
trate
is
If
so.
138;
Inc.,
at
Milco,
supra,
v.
388 F.2d
NLRB
part
because
organizer
charges
City
Au-
cf. Beazer
New
Transit
v.
York
part
be-
organizational
activities
97,
(2d
1977),
558
Cir.
cert.
thority,
F.2d
101
sabo-
repeated
acts of industrial
cause
-
-,
3121,
granted,
98
57
U.S.
S.Ct.
the dis-
to hold
tage,
it would
absurd
294,
(1978); NLRB v. Local
L.Ed.2d 1146
charge
to be unlawful.
Teamsters,
International Brotherhood of
applied
rule
causation
Circuit
57,
1972),
(2d
470 F.2d
62
Cir.
or
must at least
is that “the General Counsel
(2)
discharged partly
employees are
provide
inferring
basis for
reasonable
“[i]f
participation
campaign
because of their
in a
ground
permissible
alone would
partly
establish a union and
because of
discharge, so that
it was
have led to the
neglect
delinquency,”
some
NLRB v.
impermissible
an
partially
motivated
725,
Sterling
211
Corp.,
Jamestown
F.2d
726
Meats,
Edge
v. Park
one.” NLRB
Sheridan
(2d
1954);
v.
Cir.
see NLRB Advanced Busi
728; accord,
Inc.,
at
NLRB
supra, 341 F.2d
at
474 F.2d
463-
Corp., supra,
ness Forms
Co., supra, 405
Transportation
v. Dorn’s
64;
Sons,
Roberts &
George
NLRB v.
J.
Inc.,
Milco,
712-13;
supra,
v.
NLRB
F.2d at
Inc.,
941,
(2d
1971);
Cir.
451
945
NLRB
F.2d
138-39; NLRB v. L. E. Farrell
99
inadequate
protect
to
rights
prove
he
occupied had
than he would have
duct
Second,
more
and
difficulty
rights.
organizational
nothing.
done
[such
the stat-
require
purpose
reinstate-
not the
important,
it would
it is
is that
rule]
undertaking
per-
and
into
employees
where a dramatic
pressure
ment in cases
to
ute
inevitably on the
in the
incident is
Embodied
haps abrasive
efforts.
organizational
deci-
for the
responsible
those
With-
minds of
of free choice.6
principle
is a
statute
rehire,
play part
and does indeed
test,
place
sion to
an
we “could
a “but for”
out
deci-
if the same
in that decision —even
of”
position as a result
in a better
employee
been reached had
sion would have
“than he would
efforts
organizational
his
The constitutional
incident not occurred.
nothing.”
Id.
occupied had he done
have
sufficiently vindicat-
principle at stake is
actually undermine
a result would
Such
in no
placed
is
ed
such
employ-
by inducing
purpose of the statute
not en-
position
worse a
than if he had
a union
lightly when
especially
ers to tread
A
or
gaged in the conduct.
borderline
thereby violating the
activist
involved —
not have the
marginal candidate should
activity.
pro-union
Cf.
by encouraging
Act
against
employment question resolved
Dairy Employees,
Drivers &
NLRB v. Milk
constitutionally protected
him because of
Thus, we
F.2d 1162.
supra,
Local
531
ought
same candidate
conduct. But that
applying
was correct
the Board
hold that
con-
able,
engaging in such
not to be
case.
for” test in this
“but
duct,
employer from as-
prevent
to
his
therefore,
us,
before
issue
and reach-
record
sessing
performance
his
in the
evidence
substantial
whether there
rehire on the basis
ing a decision not to
as a whole to
record considered
record,
protected
simply
because
Tabaka would
Board’s conclusion
employer more certain
conduct makes the
ac
his union
discharged but for
have been
of its decision.
of the correctness
there is not.
tivities. We hold that
v.
Board of Education
Healthy City
Mt.
decision,
explained its
In its
the Board
285-86,
Doyle, 429
97 S.Ct.
U.S.
following manner:
conclusion
(1977).
may
471
It
be ar-
50 L.Ed.2d
record, we
the basis of entire
On
inadequate to
gued
[sic]
that a “but for” test is
not en-
are convinced that had
employ-
protect
organizational rights
he would have
activities
gaged in union
ees,
reasons.
argument
fails for two
until such time as
First,
been retained at least
which is
it is doubtful whether a test
assigned chores. Our
completed
Amendment
adequate
protect
to
First
for, join
Congress
or otherwise assist unions.
to
Quite
makes it clear that
6. The statute itself
ways:
goals
contrary,
en-
accomplish
purpose
Act is to
in two
intended to
procedure
(1) “by encouraging
practice
procedure” of collec-
courage
“practice
freely
(2) “by protecting
employees
bargaining”
bargaining
of collective
tive
once
collectively.
asso-
bargain
matter how
the exercise
workers of full freedom
No
chosen to
ciation,
designation
join
self-organization,
join
or
wise or
the decision
foolish
choosing,
representatives
union,
belongs
for the
of their own
the individual
that decision
negotiating
representa-
purpose
worker,
bargaining
and condi-
the terms
until a
at least
employment
nego-
by majority
mutual aid
of their
or other
tions
of the workers
tive selected
(“Findings
protection.”
security agreement.
U.S.C.
151
§
or
29
It would
a union
tiates
qualms
policy”).
Congress
guarantee
We have no
incongruous
declaration of
indeed for
acknowledging
importance of union
self-organization,
“the
right
about
“the
securing
bargaining.”
recognition in
collective
form,
organizations,
join,
bar-
or assist labor
Lines, Inc.,
Pennsylvania Greyhound
collectively through representatives
gain
261, 267,
L.Ed.
303 U.S.
S.Ct.
engage
choosing,
in other
and to
their own
(1938).
Act
do we doubt
that “[t]he
Nor
purpose of collec-
activities for
concerted
contemplates
making
with la-
of contracts
protec-
bargaining
or
mutual aid
tive
or other
objec-
organizations.
bor
That is the manifest
any
right
refrain from
and also “the
tion”
bargaining.”
providing
tive in
for collective
activities,”
and at
such
29 U.S.C.
all of
NLRB,
Edison
Consolidated
Co.
policy
imply
same time
in its declaration
206, 220,
(1938).
83 L.Ed.
encouraged
do the
workers are to be
Congress
pass
Act to insure
But
did not
rather
latter.
former
than the
promote, organize, vote
that workers
*10
“Pe-
Second,
of
the Board’s translation
on Petruz-
regard
in
is based
finding
this
that,
if Tabaka
zi's undenied statement
a distortion
is
truzzi's undenied statement”
activities, he
engaged
in union
had
rec-
said. The most that
of what was
Indeed,
in
would have been retained.
asserted, in
is
support
ord will
earlier decision to
view of [Petitioner’s]
argu-
heated
apparently
an
the course of
pole survey was
retain Tabaka after the
(some wit-
ment, that he could have found
it
to assume
completed,
reasonable
“created”)
work
more
he said
nesses said
that,
leading
role as the
but for Tabaka’s
of the union
a result
but as
advocate, he
have been re-
situation,
of his hands.
was out
the matter
to
work
perform
tained
more
was little
than
Petruzzi’s statement
yet-
well
at the
Waterbury jobsite as
as
could have found
bald
assertion
and/or Mid-
Plymouth
to-be constructed
course of this
entire
more work.
In the
jobsites which
dlebury
[Petitioner]
suggested what
ever
one has
litigation, no
Thus, when Taba-
contemplating.
then
no
been.
had
might have
that work
in
light
discharge
ka’s
is viewed
[Peti-
salesman,
Ta-
and his back
towards
as
change
attitude
interest
tioner’s]
discharge
baka,
to
him
its direct
threat
an
working
from
him
injury prevented
activities, as well as its
for his union
The mere fact
repairman.
installer or
undermine
Un-
campaign
unlawful
to
new
have created a
he could
Petruzzi said
only
ion’s
we
conclude that
majority,
can
Moreover,
even
not make it so.
does
was motivated
discharge
said
[Peti-
it
that Petruzzi
have found
were true
could
Moreover, by dis-
union animus.
tioner’s]
nothing
this record to
something, there
leading adherent
charging the Union’s
again
the conclusion that he would
election,
just 1 week
before
[Petition-
persuading
to
been successful in
Baker
have
to
sought
also
dissuade
er]
give
work to Tabaka.
new-found
upcom-
supporting
Union
regard rests
theory in
on
Board’s
the.
re-
ing election. As is evident from the
once,
did it
assumption that because Baker
election,
succeed-
sults
[Petitioner]
that he would
it
to assume”
is “reasonable
we
Accordingly,
ed in its
find
efforts.
again.
assumption reflects
do it
This
violated
that Tabaka’s
Section
8(a)(3)
misunderstanding of the na-
of the Act.
fundamental
and of Tabaka’s
petitioner’s
ture
business
analysis.
This reasoning will not withstand
pole
finished the
in it.
role
After Tabaka
First,
“assigned chores” to which the
logical
sense
survey,
good,
business
made
than
nothing
refers were
more
odd
Board
inspection.
keep
to finish
final
him on
keep
jobs,
occupied
him
given
counterpart,
inspec-
phone company
survey
when his
Sulli-
and the
pole
Both
van,
The number
un-
recording
was unavailable.
inspection,
tion
visual
involved
was so
that it took no
finished chores
small
in-
map updating. Tabaka had been
hours,
more than a few
over the course
determining
what
process
volved
months,
employees to com-
several
for other
pole,
to each
and it
should
done
plete
spare
The notion
them in their
time.
in-
keep
rational
him on
conduct an
petitioner,
planned
which
spection
everything
determine whether
get
temporary employee back in
rid of this
correctly.
had been done
There
July
kept
and which had
him on
to keep
motive
him on. The com-
economic
inspection,
finish the final
pletion
inspection
phone
of the final
January
kept
him on after
refund,
in a
expected to result
when the final
was finished
keeping Tabaka
and the whole
behind
idea
budget
made no
January
expedite
completion
on was to have him
wages, merely so that he
allowance for his
this task
performed
He
inspection.
wrap up
few hours of
could be allowed
complained
be-
about
so well that Sullivan
that could be accom-
busy
unfinished
work
completely
ing rushed. The situation
employ-
of other
plished
spare
time
inspection.
the final
ees,
different at the end of
absurd.
*11
843;
v.
Co.,
NLRB Unit
finished,
supra, 441 F.2d
phone company
The
work was
Corp., 391 F.2d
The
ed Mineral & Chemical
unnecessary.
further
was
expediting
1968);
Montgom
error
also 832-35
process
inspection
for
was
Co.,
Cir.),
indeed,
ery
242 F.2d
the construction contrac-
Ward &
complete;
40, 2
denied,
left.
it is
cert.
tor’s
had all
While
justified
it was not
(1957),
loose
to be
true
were a few
ends
L.Ed.2d
that there
the innocent motiva
dispute
completely
that Petruzzi
up,
beyond
ignoring
tied
discharge.
the
Peti
timing
months
tions
hours over several
for the
spent only a few
little control over
relatively
making
properly.
work was done
tioner had
the
sure
be
would
com
inspection
is that because
the
The
conclusion
when
final
only rational
1975, Baker
said
plete.
In
that
involved the
November
job
Tabaka had a
sometime after
done
project,
thought
his
it would be
inspection of a construction
later than Febru
year,
and the first of
not
would
the construction ended
the
end when
control over the
inspection
complete.
ary.
greater
The Board’s
Tabaka had
the
doing
inspection.
the
timing, for he was
contrary finding is in truth based on the
comple
the
had
Tabaka and
announced
assumption
engaged
that if Tabaka
not
Sullivan
roughly
the
on schedule
pro-union
have
tion of
activities
would
found,
him,
payday
Fri
January
would have
on
6. The next
given
Inasmuch as the task for
day, January
basis in
sinecure. There is no
this record
was extended had end
support
assumption.
which Tabaka’s
ed,
logical day for
dis
Friday
his
Third,
also relied
petition-
the Board
on
charge.
discharge
er’s
for
“direct threat to
[Tabaka]
argument
record,
his
cir-
on
we can reach
union
This
Based
activities.”
have
was Petruzzi’s
been
cular.
“threat”
one
The
conclusion. Tabaka
9,1976, regardless of
might
January
remark
have been able to discharged
that he
language
ALJ Black-
find
for Tabaka.
his
Put in the
more work
union activities.
decisions,
Counsel has
prior
was a threat sufficient
the General
burn found that this
inferring
basis for
support
8(a)(1)
provided
“a
§
a conclusion
reasonable
alone
permissible ground
as the
been violated.
Inasmuch
statement
discharge.”
NLRB v. Park
proves
regarding petitioner’s
itself
little
have led
Meats,
supra,
Edge
discharging
motives
addi-
Sheridan
for
no
conclusion,
at 728.
In view of
tional
is added to the
reason-
force
Board’s
bargaining
cannot stand.7
order
ing
denominating the statement
merely by
Equally
“threat.”
unwarranted
granted;
review is
petition
record is the Board’s characterization of
by vacating
of the
is modified
order
Board
petitioner’s conduct as an “unlawful cam-
1(f), 2(a), 2(b), 2(c),
1(d), 1(e),
paragraphs
paign
majority.”
the Union’s
to undermine
2(d)
by appropriately
modi-
thereof
appears
to have commit-
reality, Petruzzi
posted;
fying any
which must
notice
arguing
ted
the Act while
violations of
granted
cross-application for enforcement
pros
joining
a union. But those
and cons
indicated.
except
just
extent
arguments
at a time when there
place
took
a mem-
whether he himself was
FEINBERG,
doubt
(dissenting):
Circuit
unit, and
bargaining
ber of
his conduct
majority’s
I
reversal of
dissent from the
campaign
can
as a
be described
hardly
the Company’s
the Board’s decision
the union.
undermine
8(a)(3)
violated
of Tabaka
may
Board
have been
Act
Finally, while the
Labor Relations
National
portions
justified
drawing an inference of anti-
the refusal
those
of the
to enforce
timing
requiring appropriate
relief
union animus on the basis
Board’s order
I
dissent from the
discharge, NLRB v. M. H. Brown for that violation.
originally
new election
7. The
remains
free
order
recommended
ALJ
Board
Black-
burn.
job.
keep
him on
work for Tabaka
the Board’s
majority’s refusal
enforce
and had
the first unit
bargaining order.
without
months
over
employed
been
controlling
majority
describes
Nevertheless,
work.
of his
any criticism
is substantial
question as “whether
there
discharged him without ad-
Company
as a whole
evidence in the record considered
hotly
before the
con-
week
vance notice one
Ta-
conclusion that
the Board’s
Yet,
four
some
scheduled election.
tested
discharged but
baka would not
been
before,
Tabaka had asked Pe-
months
The recent cases
activities.”
*12
came
(before the union
for a raise
truzzi
circuit,
cir-
those from other
in this
unlike
“ap-
scene),
told Tabaka
the
thorough opin-
cuits cited in
Meskill’s
four
months.”
[again]
him
or five
proach
ion,
the
usually
framed
issue
not
twice been
Tabaka testified
has
employer
“but for” terms when the
“couple
had a
Company
the
told that
reasons for dis-
both valid and invalid
him,
Tabaka and
years”
work for
However, I
charge.1
no need for an
see
ap-
after the Union
testified that
Sullivan
I have with
problems
extended discussion of
to finish their
peared,
they were rushed
test,
majority’s
the “but
the
for”
because
that when
indicates
evidence
work. Other
justified even
its
result cannot be
under
fired,
several
there were still
test.
own
to do.
for him
weeks of work
more
of the
reveals
follow-
record
evidence
record, then, supports findings that
This
attempt
organize
the
ing: Tabaka led
union
hostile
Company was
the
unit,
Company
and the
the
in the
him,
discharged
indeed
activities before it
union
concedes
it knew of Tabaka’s
be laid off
that Tabaka would
admitted
discharged
activities
it
him.
union,
his
with the
because of
involvement
the union and en-
Company was hostile to
completion
the
his final in-
accelerated
de-
gaged in
of unlawful conduct
a course
duties,
summarily
then
termi-
spection
signed
Among
it.
undermine
shortly
advance notice
nated him without
employ-
various
things,
Company gave
the
election, despite
representation
the
before
ees the
their union activities
impression
left to do.
fact that he had some work
the
were under
surveillance
threatened
supports
evidence therefore
Substantial
them with loss of benefits
more oner-
Company
that when the
Board’s conclusion
working
reprisal
ous
conditions in
for their
discharged
leading adherent”
“the Union’s
union activities. These activities were
by
.
union ani-
was “motivated
8(a)(1) order,
basis of the
which the Com-
§
and an
“to dissuade
mus”
intent
[re-
majori-
which the
pany does not contest and
supporting maining] employees from
ty
by
enforcing.
confirms
Commission
in the
election.”
upcoming
Union
probative
practices
these unfair labor
test,
motivation in dis-
con-
Using
majority’s
anti-union
I therefore
Company’s
see,
NLRB
charging
g.,
e.
v. Ad-
substantial evidence
clude that there was
457,
474
Corp.,
Forms
F.2d
as a whole to
vanced Business
the record considered
Ta-
that Tabaka would
(2d
1973),
465
as the Board noted.
conclusion
Cir.
the Board’s
9,
January
superior,
discharged on
by
baka was
his immediate
not have been
told
Petruzzi,
1976,
union activities.
refut-
engaged
if Tabaka had
findings,
majority
has
activities,
could have been
Board’s
ing
union
more work
Indeed,
judgment
improperly
Pe-
substituted
keep
employed.
found
him
able
find
as to the inferences to be drawn
truzzi
before been
Board’s
had once
Sons,
292,
(2d Cir.),
denied,
g.,
George
cert.
389 U.S.
v.
J. Roberts
300-01
1. E.
in NLRB
&
Inc.,
(2d
1971),
(1967). The
451
945
we said in
Local majority. approval cited with
a case decision, the
In the last sentence por-
majority vacates without discussion required
tions of Board’s order bargain with the
Company recognize I reason this action
union. assume the 8(a)(3) of a viola-
is that absence
tion, Company’s majority concluded the bargaining order.
conduct did warrant record, disagree I
On
conclusion,2 I but since think the Board discharge vio-
correctly found that Tabaka’s fortiori, I the bar- 8(a)(3), a think
lated §
gaining appropriate. order was
Accordingly, I dissent. Stud, Inc.,
C. T. FULLER and Louisiana
Plaintiffs-Appellants, COMPANY,
FASIG-TIPTON
INCORPORATED,
Defendant-Appellee.
No. 78-7121. Docket Appeals,
United Court States Circuit.
Second
Argued Sept. 1978.
Decided Nov.
1978.
Where,
here,
showing
the Board
“almost
total discretion to
there is a
sel
has
bargaining
appropri-
union once
authorization cards from a ma
determine when a
order is
unit,
jority
bargaining
recognized
employees
viola-
ate.”
It has been
that when
proper
though
employer’s
type
in this
^“[threat-
order
even
tions of
found
case—
discharge,
“per
ening
“outrageous”
loss of bene-
violations were less than
fits,
working
properly
or more
conditions
onerous
vasive”
the Board
concludes
activity,”
practices
tendency
engaging
in a small
had “the
undermine
—occur
overwhelming
unit,
impact
majority
impede
proc
closely-knit
strength
the election
Co.,
g.,
unlikely. E.
Packing
ess.”
and a
re-run election
v. Gissel
fair
575, 613-14,
Inc.,
23 L.Ed.2d
466 F.2d
89 S.Ct.
Scoler’s
disregarding
(1969).
1972).
Met
And in NLRB v. International
Cir.
Thus even
discharge,
given
Specialities,
the Board
al
reasons
1970),
denied,
imposition
bargaining
in this case
order
cert.
402 U.S.
justify
adequately explain
(1971),
decision.
under