
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2048                           NATIONAL SURFACE CLEANING, INC.,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                     ON PETITION FOR REVIEW AND CROSS-APPLICATION                            FOR ENFORCEMENT OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Nathan L.  Kaitz with whom Morgan,  Brown & Joy  was on brief  for            ________________           ____________________        petitioner.            Richard Cohen  with whom Frederick  Havard, Supervisory  Attorney,            _____________            _________________        Frederick L. Feinstein, General  Counsel, Linda Sher, Acting Associate        ______________________                    __________        General  Counsel,  Aileen  A.   Armstrong,  Deputy  Associate  General                           ______________________        Counsel,  and  National  Labor  Relations  Board  were  on  brief  for                       _________________________________        respondent.                                 ____________________                                     May 15, 1995                                 ____________________                                         -2-                      ALDRICH, Senior Circuit Judge.   This is a petition                               ____________________            by National Surface Cleaning, Inc. to review and set aside an            order of the  National Labor Relations Board  finding that it            unlawfully  discharged  employees  Humberto   Yeppes,  Carlos            Silva,  Libardo  Quintero,  and  Jairo and  Cesar  Duque,  in            violation of  Section 8(a)(4) and  (1) of the  National Labor            Relations Act, 29 U.S.C.   158(a)(4) and (1).  In re National                                                           ______________            Surface Cleaning, 314 NLRB No. 92 (July 28, 1994).  The Board            ________________            found National  violated the Act by notifying Yeppes on March            13,  1993  that he  would never  work  for the  company again            because  of  having filed  an  unfair  labor practice  charge            against  it on  March 2,  1993, and  by discharging  the four            others for assisting or  supporting him.  National's position            is that (1) substantial evidence does not support the Board's            finding as  to Yeppes  because  he was  let go  prior to  its            learning of  the charge,  (2) the Board  misconstrued section            8(a)(4)  in  ruling  that  it protects  the  others,  and (3)            ignored evidence indicating National's actions were in no way            based upon the charge.                      Background                      __________                      National is engaged in  asbestos removal at various            sites  in and  around New York.   At  each site  it employs a            project  manager, foremen,  and  a crew  of asbestos  removal            workers,  members of  the  Mason Tenders  Union.   Typically,            these workers are hired on a  project by project basis.  They                                         -3-            may be laid off for some time, and recalled when required.                      As of  February 1992  the employees in  the present            case were all working at  1411 Broadway under project manager            Pablo Ortega.   On February  21, Ortega laid  off the  entire            crew,1 with  the exception of  five employees who  he brought            to a new  project at the Grace building.   Some of those laid            off  believed  they  were not  transferred  because  National            intended to complete the Grace job with non-union workers.                      On March 2, 1992, Yeppes visited the Grace building            and thanked Ortega for having employed  him at 1411 Broadway,            but  Ortega did not  offer him work  at the new  site.  Later            that day, Yeppes  filed an unfair labor  practice charge with            the Board,  alleging National laid off its  employees at 1411            Broadway and did not recall them to the Grace site because of            their  union membership.  Around  March 5 Yeppes  and some of            the others also complained to the union local.  On March 6 or            7,  Ortega called Quintero and asked him to contact the group            who  had been laid  off from 1411  Broadway and tell  them to            report  to work  at the  Grace building  on Monday,  March 9.            Quintero  complied,  but  did  not  call  Yeppes  because  he            regarded Yeppes  as a supervisor2 and  therefore not included            in the group.  On March 9, all except Yeppes began working at                                            ____________________            1.  There  was some dispute as to whether Yeppes was laid off            at this time or sometime prior to the others.            2.  Yeppes had at times been employed as a project manager.                                         -4-            the Grace site.                                         -5-                      National  received Yeppes' Board complaint on March            9, and  Ortega testified to hearing  about it by  March 10 or            11.   However, a union  representative had visited  the Grace            site to check union cards sometime before March 9.3                      On March 12, foreman  Javiar Alzate told  Quintero,            Silva  and the Duque brothers upon their arrival at work that            they should not  begin and to wait for  Ortega.  According to            the employees, when Ortega arrived he accused  them of filing            a  complaint against him, which  they denied.   He claimed to            have seen Yeppes' name on a complaint but admitted he had not            seen  the others'  names.   He then  told them  they were  no            longer needed at the Grace building but might be able to find            work at  100 Wall  Street or  1411 Broadway.   He also  asked            Jairo Duque to talk to Yeppes.  Ortega testified that he laid            them off because they had been  late to work on March 12 (and            Jairo Duque had  missed several days  that week) and  because            they  never showed up at 1411 Broadway,4 but it is undisputed            that the only subject  he discussed with them on  the morning            of the 12th was the complaint.  Later that day foreman Alzate                                            ____________________            3.  The  testimony of  Jairo Duque  suggests that  Ortega was            prompted  to recall the laid off workers after the union shop            steward visited the building.            4.  Ortega  testified that  he called  the Duque  brothers on            Friday  evening, March  12, and  left a  message for  them to            report to 1411 Broadway the next day for a weekend job.  They            claim they were  never told.  They did go  to 100 Wall Street            on Monday, March  16, but  found no one  there and,  assuming            Ortega had misled them, never went to the 1411 Broadway site.                                         -6-            told  two other employees that  a group could  no longer work            for  National because they had put in a complaint against the            company.    The  brother of  one  of  the  employees, also  a            foreman, told him the same thing.                      On March  13 Ortega called  Yeppes and said  he had            found out about the  complaint and was upset that  Yeppes had            come to thank  him and then turned around  and filed a charge            against him.  Yeppes  testified that Ortega then told  him he            would never work for  the company again.  Ortega  denied ever            saying  this.  Yeppes in  fact has never  worked for National            again,  and the other  four, despite efforts,  have also been            unable to get themselves rehired.5                                        Yeppes                                        ______                      Section 8(a)(4)  of the  Act makes it  unlawful "to            discharge  or  otherwise  discriminate  against  an  employee            because he has  filed charges or  given testimony under  this            Act."   N.L.R.A.   8(a)(4), 29 U.S.C.   158(a)(4).  The Board            found  Ortega's decision  not to  recall Yeppes to  the Grace            building along with the others on March 9 did not violate the                                            ____________________            5.  Quintero once  sought work  at 1411 Broadway  with a  co-            worker, the co-worker was  hired, but Quintero was told  by a            supervisor that  he had  been instructed  not to  hire anyone            involved in the complaint against the company.  Another time,            he  had been under the  impression that he  had been rehired,            but when he showed up he  was informed he was not among those            recalled because  he was involved  in the complaint.   Ortega            eventually rehired  Silva for the 1411  Broadway weekend job,            but  we decline  to  disturb the  Board's  finding that  this            "simply represents . .  . that Ortega changed his  mind about            Silva," and had no effect on the March 12 events.                                         -7-            Act, but that Ortega's March 13  communication with Yeppes to            the  effect  that he  would  never  work  for National  again            because he had filed charges  against Ortega and the company,            did.  The question here is not whether   8(a)(4) applies, but            whether Yeppes was effectively discharged on March 13 because            of the  charge, or for  unrelated reasons  sometime prior  to            National's (or Ortega's) awareness of the charge, as National            contends.                      National  claims  the  evidence   establishes  that            Ortega  never intended to recall Yeppes after he was laid off            sometime  in February because he felt he could no longer work            with  Yeppes6 and  never  intended to  hire  him again.    It            insists that Yeppes had therefore been discharged well before            it  became  aware  of   his  unfair  labor  practice  charge.            National points to the fact that on March 2 Yeppes sought out            Ortega  and thanked  him for  having given  him work,  and to            Ortega's testimony  that he was dissatisfied  with Yeppes and            that  it  was his  practice simply  to  never recall  such an            employee, rather than  to inform him  that he is  permanently            discharged, and  that all  of this conclusively  supports the            inference that Yeppes had  been discharged effective prior to            his  ever having filed the charge.  It furthermore claims the                                            ____________________            6.  National  claims  Yeppes  had  repeated  difficulty  with            Ortega, in large part because he had once been employed  as a            supervisor and  the younger  and less experienced  Ortega had            worked under him.                                         -8-            Board had no basis  for crediting Yeppes' testimony regarding            Ortega's March 13 threat that Yeppes would never work for the            company again when Ortega denied ever making it.                      We are satisfied that the Board reasonably resolved            these credibility issues against National, and its conclusion            that the March 13  conversation transformed Yeppes' temporary            lay off into permanent  discharge is supported by substantial            evidence.  Universal Camera  Corp. v. NLRB, 341 U.S.  474, 71                       _______________________    ____            S.Ct. 456, 95 L.Ed. 456 (1951).  The  Board found no evidence            Yeppes had  been permanently  discharged simply by  virtue of            the fact  that he was not  recalled along with the  others on            March  9.   Further,  simply  because  Ortega had  difficulty            working  with Yeppes  does  not mean  other National  project            managers  did  or would,  so  even  if Ortega  himself  never            intended  to recall  Yeppes this  does not  mean he  had been            discharged  by   National.     Yeppes   had  completed   jobs            satisfactorily for other National supervisors, and had been a            project  manager himself prior to working for Ortega.  And if            Yeppes  had already  been permanently  discharged,  why would            Ortega  need to tell him  on March 13,  while castigating him            for filing charges against him and the company, that he would            never  work  for  the  company  again,  as  the  Board found.            Finally, there  was evidence that other  supervisors had been            told not to use  any of the employees associated  with filing            the  charge,  providing the  Board  with  reason to  conclude                                         -9-            Ortega's threat was neither fictional nor                                          -10-            idle, and was  prompted by and  delivered in retaliation  for            Yeppes' having exercised his rights under the Act.                               The Four Other Employees                               ________________________                      As to the other  four employees, the questions are,            first, whether  they were discharged; second,  if so, whether            this was for being late  to work and not showing up  at a job            to  which they  had  allegedly been  reassigned, as  National            contends, or because National believed  they had participated            in  filing charges  under the  Act, as  the Board  found; and            third,  whether      8(a)(4)  prohibits   an  employer   from            discharging  or otherwise discriminating  against an employee            for believing  that he  "supported" or "assisted"  another in            relation to filing such charges against it.                      Reasons for the Discharge                      _________________________                      The  Board  concluded   that  the  four  had   been            discharged,   "because  they  had   a  reasonable  basis  for            believing  . .  . that  the Company  no longer  desired their            services," citing Ridgeway Trucking Co., 243 NLRB 1048 (1979)                              _____________________            ("the  fact of  a discharge  does not  depend on  the  use of            formal  words of  firing,"  but upon  whether the  employer's            words or  actions "would logically  lead a prudent  person to            believe his  tenure had been terminated").  Second, the Board            found their discharge was in retaliation for the unfair labor            practice charge, which National believed they "supported"  or            "assisted" Yeppes in filing.                                         -11-                      National counters that  the evidence is clear  that            Quintero,  Silva  and  the  Duque  brothers  were  discharged            because they were late to work  on March 12, and did not show            up  at 1411  Broadway on March  14, the  job to  which Ortega            testified  he had  reassigned them.   The  Board's considered            assessment  of the  evidence  found it  did not  support this            version of events.                        Again, we find the Board's conclusion is based upon            reasonable resolutions  of credibility issues.   There was no            evidence lateness was discussed during Ortega's interrogation            of the  four employees  on the  morning of  March 12,  nor is            there any solid evidence each of them was late  on that day.7            There was evidence, however,  that during this meeting Ortega            was visibly  upset by news  of the charge,  initially accused            the  four men of having filed  it, repeatedly questioned them            about it,  specifically  requested that  Jairo Duque  contact            Yeppes in a manner  that suggested, as the Board  found, that            he meant for Jairo  to talk Yeppes into dropping  the charge,            and simultaneously informed all  four that they were  off the            job.  The four denied  ever being told to report for  work at            1411 Broadway on Saturday,  March 14.  Nor is  there evidence            that  the supervisor on that  project expected them.   On the            contrary, they testified that Ortega told them to try to find                                                              ___                                            ____________________            7.  In  fact,  there was  testimony  that  Silva was  already            upstairs  suiting up  for work  when he was  told to  go back            downstairs and wait for Ortega to arrive.                                         -12-            work  elsewhere, at 100 Wall  Street or 1411  Broadway.  When            they  tried the former, they found no one there and concluded            they had been, in effect, discharged.                      The Scope of Section 8(a)(4)                      ____________________________                      National  contends in  any event  that  an employer            cannot  be  found in  violation of     8(a)(4) for  taking an            adverse action against an  employee unless that employee has,            strictly, "filed  charges or given testimony  under the Act."            N.L.R.A.   8(a)(4), 29 U.S.C.   158(a)(4), and that the Board            impermissibly  broadened its  scope  by ruling  that it  also            protects supporting  or assisting another in  relation to the            filing of charges.                      Section 8(a)(4) should be  read broadly in favor of            the employee,  NLRB v. Scrivener,  405 U.S. 117,  122 (1972),                           ____    _________            NLRB  v. Globe Manufacturing Co.,  580 F.2d 18,  20 (1st Cir.            ____     _______________________            1978), and  the Board's reading, if  permissible, is entitled            to substantial deference.  NLRB  v. J. Weingarten, Inc.,  420                                       ____     ___________________            U.S. 251, 266-67 (1974).                      Scrivener held that    8(a)(4) protected  employees                      _________            who  gave   sworn  statements  to  a   Board  field  examiner            investigating an  unfair labor practice charge  filed against            their employer, although  they had neither personally  "filed            charges" nor literally "given testimony."  405 U.S. 117, 121.            The  Court  found  this  liberal approach  justified  by  the            congressional  purpose to allow "all persons with information                                         -13-            about  [unfair labor]  practices to  be completely  free from            coercion against  reporting them  to the Board,"  id. at  121                                                              ___            (citation  omitted),  and to  protect  the  integrity of  all            investigative stages of  Board proceedings and  an employee's            participation  in   them,  regardless  of  whether  it  falls            somewhere  between an  actual filing  and formal  testifying.            Id. at 122-124.            ___                      The   Scrivener   rationale   has   led    to   the                            _________            interpretation of   8(a)(4) to protect an employee who merely            threatens to file  charges with the  Board, Grand Rapids  Die                                                        _________________            Casting  Corp. v.  NLRB, 831  F.2d 112  (6th Cir.  1987); who            ______________     ____            refuses to  testify on the  employer's behalf in  relation to            charges filed with the Board, NLRB v. Retail Store  Employees                                          ____    _______________________            Union  Local 876, 570 F.2d 586, 590 (6th Cir.), cert. denied,            ________________                                ____________            439  U.S. 819  (1978) ("[c]oercing  employees to  give untrue            testimony just  as surely  undermines the integrity  of Board            proceedings as  does coercing employees to  give no testimony            at  all"); or whom the employer believes has filed or intends            to file a charge with the Board.  First National Bank & Trust                                              ___________________________            Co.,  209 N.L.R.B.  95, enf'd,  505 F.2d  729 (3d  Cir. 1974)            ___                     _____            (table).                       Here  the  Board found  that Ortega  had discharged            Quintero, Silva,  and the Duque brothers  because he believed            "that  they had supported Yeppes in relation to the filing of            the  unfair labor practice charge."   Strictly, it twice used                                         -14-            the verb "support," and  twice the verb "assist."   We deduce            from the  factual context  in which it  grounded its  finding            that the  Board concluded  Ortega was  motivated by  a belief            that  the  men either  had or  intended  to provide  not mere            encouragement or reassurance, but actual, tangible support in            the prosecution  of Yeppes' complaint,  i.e., in the  form of            providing corroborative statements or testimony, which Ortega            knew them to be in a position to do.  These men had been part            of  the group allegedly laid  off by Ortega  because of their            union  membership and stood in the exact same positions vis a            vis their employer  and the  Board as did  Yeppes, save  that            Yeppes  had been the only one to actually sign the complaint.            The Board  reasonably surmised Ortega's dismissal  of the men            to have  been prompted  by a  belief that  they had  or could            corroborate Yeppes' allegations to the Board, i.e., that they            had or might exercise their rights under the Act.                      The order  of the Board is  therefore affirmed, and                                                            ________            its cross-appeal for enforcement is granted.                                                _______                                         -15-
