
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2236                      LOCAL 14 UNITED PAPERWORKERS INTERNATIONAL                     UNION, AFL-CIO AND INTERNATIONAL BROTHERHOOD                      OF FIREMEN AND OILERS, LOCAL 246, AFL-CIO,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.        No. 92-2346                            NATIONAL LABOR RELATIONS BOARD                                     Petitioner,                                          v.                             INTERNATIONAL PAPER COMPANY,                                     Respondent.                                 ____________________                         ON PETITION FOR REVIEW OF AN ORDER                         OF THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jeffrey Neil  Young with whom  McTeague, Higbee, Libner,  MacAdam,            ___________________            ___________________________________        Case   &  Watson  was  on  brief  for  Local  14  United  Paperworkers        ________________        International Union, etc.            Vincent J. Falvo,  with whom Linda Dreeben, Supervisory  Attorney,            ________________             _____________        Julie B.  Broido, Senior Attorney,  Jerry M. Hunter,  General Counsel,        ________________                    _______________        Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos,        _______________                                 _____________________        Acting  Associate General  Counsel,  and Aileen  A. Armstrong,  Deputy                                                 ____________________        Associate  General Counsel, were on brief for National Labor Relations        Board.            Jane B.  Jacobs with whom Nancy  B. Schess, Lee  R. A. Seham,  and            _______________           ________________  ________________        Seham, Klein & Zelman  were on brief for International  Paper Company,        _____________________        amicus curiae.                                 ____________________                                   August 19, 1993                                 ____________________                      STAHL,   Circuit   Judge.      Local   14,   United                               _______________            Paperworkers International Union,  AFL-CIO and  International            Brotherhood  of  Fireman  and  Oilers,  Local  246,   AFL-CIO            (referred to collectively as "the Union") petition this court            to review  and set  aside that  portion of  an  order of  the            National  Labor  Relations   Board  ("the  Board")  affirming            International   Paper  Company's  ("IP")  discharge  of  four            striking   employees  for  strike-related   misconduct.    IP            intervenes  on the  side  of the  Board.   The  Board  cross-            petitions for enforcement of that part of its order requiring            IP  to offer a fifth  striker reinstatement.   In the Board's            cross-petition,  the  Union intervenes  on  the  side of  the            Board.  For the reasons set forth below, we grant enforcement            of the Board's order in its entirety.                                           I.                                          I.                                          __                                  FACTUAL BACKGROUND                                  FACTUAL BACKGROUND                                  __________________                      IP operates the Androscoggin Paper Mill in Jay,            Maine.  Approximately 1200 members of the Union are among the            employees at the Jay facility.  In June 1987, the collective            bargaining agreement between IP and the Union expired, and            Union workers went on strike.  Nevertheless, IP maintained            operations at the mill throughout the strike, employing non-            striking union members and non-union replacement workers.             The walkout was marked by periodic outbreaks of violence,                                         -3-                                          3            threats, and general strike-related misconduct.  In October,            1988, after the strike ended, IP discharged eleven strikers.                       The discharges prompted the Union to file an unfair            labor practice charge alleging that IP violated sections            8(a)(3) and (1) of the National Labor Relations Act, 29            U.S.C.   158(a)(3) and (1) ("the Act").  The Union maintained            that IP discriminated against striking employees by            dismissing strikers for strike-related misconduct while            failing to dismiss non-strikers who had engaged in equally            serious or more serious misconduct.  In a hearing before an            Administrative Law Judge ("ALJ"), the Union's discrimination            challenge was limited to the discharge of the following five            strikers:  Lawrence Bilodeau, Lawrence Chicoine, Forrest            Flagg, Thomas Hamlin, and Arthur Storer.  The ALJ compared            their respective acts of misconduct with that of non-striker            Andrew Barclay and found that all five strikers had engaged            in strike-related misconduct which warranted their discharge,            but that IP's dismissal of strikers Bilodeau and Flagg            constituted unlawful disparate treatment.  The ALJ's finding            was predicated on his determination that non-striker Barclay,            who retained his job but received a warning, had engaged in            strike-related misconduct at least as serious as the            misconduct of Bilodeau and Flagg.  The ALJ found no disparate            treatment, however, in IP's discharge of Chicoine, Hamlin and                                         -4-                                          4            Storer.  Both IP and the Union filed exceptions to the ALJ's            decision.                      On September 20, 1992, the Board issued a final            decision and order.  The Board affirmed the ALJ's finding            that IP had not engaged in disparate treatment in dismissing            Chicoine, Hamlin and Storer.  The Board also sustained the            ALJ's holding that IP had wrongfully discharged Bilodeau and            ordered his reinstatement.  However, the Board reversed the            ALJ's decision as to Flagg, finding his misconduct more            serious than that committed by any of the non-strikers.  This            petition for review and cross-petition for enforcement            followed.                                             II.                                         II.                                         ___                                  Standard of Review                                  Standard of Review                                  __________________                      This court must enforce the Board's order if its            findings are supported by substantial evidence on the record            considered as a whole and if it correctly applied the law.             NLRB v. Acme Tile & Terrazzo Co., 984 F.2d 555, 556 (1st Cir.            ____    ________________________            1993).  Substantial evidence "means such relevant evidence as            a reasonable mind might accept as adequate to support a            conclusion."  NLRB v. Auciello Iron Works, Inc., 980 F.2d                          ____    _________________________            804, 807 (1st Cir. 1992) (citations and internal quotations            omitted).  We are compelled to review the Board's order with            considerable deference and "may not substitute [our] own            judgment for that of the Board when the choice is between two                                         -5-                                          5            fairly conflicting views, even though the court would            justifiably have made a different choice had the matter been            before it de novo."  Destileria Serrales, Inc. v. NLRB, 882                                 _________________________    ____            F.2d 19, 21 (1st Cir. 1989) (citations and internal            quotations omitted).  Moreover, when this court reviews an            agency's credibility finding, "we must accept the finding            unless it exceeds `the bounds of reason.'"  Boston Mut. Life                                                        ________________            Ins. Co. v. NLRB, 692 F.2d 169, 170 (1st Cir. 1982) (quoting            ________    ____            P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 382 (1st Cir.            ______________________    ____            1978)).  Finally, "we need not limit ourselves to the exact            grounds for decision utilized below.  We are free, on appeal,            to affirm a judgment on any independently sufficient ground."             Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir.            ___________    __________________            1992) (quoting Polyplastics, Inc. v. Transconex, Inc., 827                           __________________    ________________            F.2d 859, 860-61 (1st Cir. 1987)), cert. denied, 113 S. Ct.                                               _____ ______            1416 (1993).                                         III.                                         III.                                         ____                   Conduct of Five Strikers and Non-Striker Barclay                   Conduct of Five Strikers and Non-Striker Barclay                   ________________________________________________                      Having carefully reviewed the ALJ's factual            findings, which were adopted by the Board, we find them            eminently supportable and therefore accept the ALJ's version            of the events.  We summarize them as follows:                 Non-striker Andrew Barclay:  On July 30, 1987, Barclay                 Non-striker Andrew Barclay                 and his son, carrying baseball bats, confronted a group                 of strikers who were attending a party near Barclay's                 lakefront home.  Barclay complained to the strikers                 about being harassed and constantly called a "scab", and                 told them that he and his son were there to "clean [the                                         -6-                                          6                 strikers] all out."1  The strikers asked Barclay to                 leave, but he did not.  In an attempt to wrest the bat                 from Barclay, striker Charles Fullerton received a cut                 that required minor medical attention.                  Striker Lawrence Bilodeau:  On October 28, 1987,                 Striker Lawrence Bilodeau                 Bilodeau, returning home from work, passed the home of a                 replacement worker.  At the time, the worker was                 standing in front of his house with his family.                  Bilodeau then turned his truck around and stopped in                 front of the worker's home.  Bilodeau noticed that the                 worker was writing down his license plate number, and                 yelled "I've worked at the mill for twenty years, and                 you ain't gonna be living here long you [expletive                 deleted].  Go ahead and write down my license.  I live                 right around the corner."                 Striker Lawrence Chicoine:  On June 27, 1987, Chicoine                 Striker Lawrence Chicoine                 was picketing outside of the mill when he accosted one                 non-striker and told her that he would kill her for                 crossing the picket line.  On July 1, 1987, Chicoine was                 again picketing outside of the mill when he used a                 megaphone to threaten a number of replacement workers as                 they arrived for work that "he had a .44" and "would                 blow [their] heads off."                     Striker Forrest Flagg:  On December 8, 1987, a                 Striker Forrest Flagg                 replacement worker drove by Flagg as Flagg picketed                 outside of the mill.  Flagg opened the passenger door of                 the replacement worker's car, reached into the car, and                 shouted "I'll kill you."                 Striker Thomas Hamlin:  On August 7, 1987, after                 Striker Thomas Hamlin                 consuming a large quantity of beer and smoking numerous                 marijuana cigarettes, Hamlin got into a truck and                 followed two groups of replacement workers as they                 returned home from work.  Hamlin harassed them and                 attempted to run them off the road with his truck.                 Striker Arthur Storer:  On August 6, 1987, as a                 Striker Arthur Storer                 replacement worker exited the mill, Storer threw a                                            ____________________            1.  Barclay later  told an  IP employee who  investigated the            incident  that prior to this incident, a number of boats full            of strikers had pulled up in front of his home, and had blown            air  horns,  cursed,  and  threatened  him  and  his  family.            Barclay  also claimed that the boats fired a projectile which            broke a window in his home, spraying glass over his son.                                         -7-                                          7                 rock at her car, kicked the car, and then jumped on                 the car's bumper.                                         IV.                                         IV.                                         ___                                      Discussion                                      Discussion                                      __________          A.  Disparate Treatment            A.  Disparate Treatment            _______________________                      The Union's principal contention is that IP engaged          in unlawful disparate treatment by discharging the five strikers          listed above for engaging in strike-related misconduct which was          less serious than misconduct committed by non-striker Barclay,          who was merely warned.2  The Board agreed with the Union as to          Bilodeau, but not as to the other four strikers.  We agree with          the Board's conclusions.                       Pursuant to   7 of the Act, "employees are granted          the right to peacefully strike, picket and engage in other          concerted activities for the purpose of collective bargaining."           NLRB v. Preterm, Inc., 784 F.2d 426, 429 (1st Cir. 1986).           ____    _____________          Section 7 also allows employees the right to refrain from these          activities if they so desire.  Id.                                          ___                      "At the end of an economic strike, an employer,          unless otherwise justified, must reinstate striking employees,          lest their discharge penalize the employees for exercising their                                            ____________________            2.  To prove  disparate treatment, a  discharged striker need            only show that his/her misconduct was less  serious than that            of one non-striker  who was  not discharged.   Here, the  ALJ            deemed  the conduct of Barclay to be  the most serious of the            non-strikers  who retained  their  jobs.    Having  carefully            reviewed the record,  we agree with  the ALJ's conclusion  on            this question.  Accordingly, we use Barclay's conduct  as the            benchmark  against which  to  measure the  Union's  disparate            treatment claims.                                         -8-                                          8          right to strike under   7 of the Act."  Associated Grocers of New                                                  _________________________          England, Inc. v. NLRB, 562 F.2d 1333, 1335 (1st Cir. 1977).  It          _____________    ____          is well established that an employer is justified in discharging          a striking employee who engages in serious strike-related          misconduct.  Preterm, 784 F.2d at 429; Associated Grocers, 562                       _______                   __________________          F.2d at 1335.  Behavior that "reasonably tend[s] to coerce or          intimidate non-striking employees in the exercise of their right          to refrain from strike activities" constitutes serious strike-          related misconduct and is cause for discharge as a matter of law.           Preterm, 784 F.2d at 429 (quoting Clear Pine Mouldings, 268          _______                           ____________________          N.L.R.B. 1044, 1047 (1984), enforced mem., 765 F.2d 148 (9th Cir.                                      ________ ____          1985)).  See also General Indus. Employees Union, Local 42 v.                   ___ ____ ________________________________________          NLRB, 951 F.2d 1308, 1314 (D.C. Cir. 1991) (similar); Newport          ____                                                  _______          News Shipbuilding & Dry Dock Co. v. NLRB, 738 F.2d 1404, 1408          ________________________________    ____          (4th Cir. 1984) (similar); Associated Grocers, 562 F.2d at 1336                                     __________________          (stressing the objective nature of the test).                        Importantly, however, an employer may not knowingly          tolerate misconduct by non-strikers that is at least as serious          as, or more serious than, the misconduct of strikers whom the          employer has discharged.  See Garrett R.R. Car & Equip. v. NLRB,                                    ___ _________________________    ____          683 F.2d 731, 740 (3rd Cir. 1982) (holding that an employer          committed an unfair labor practice where it knew non-striking          employees were equally culpable of misconduct but chose to          discipline only strikers).  In determining whether an employer          has discriminated against striking employees, a one-on-one                                         -9-                                          9          comparison between the acts of misconduct committed by the          strikers and those committed by non-strikers is appropriate.  See                                                                        ___          generally id. (comparing behavior of strikers with that of          _________ ___          employees who were not discharged).3            1.  Strikers Chicoine, Flagg, Hamlin and Storer          1.  Strikers Chicoine, Flagg, Hamlin and Storer          _______________________________________________                      The Board determined that, because the misconduct of          strikers Chicoine, Hamlin, Flagg and Storer was more serious than          the misconduct of non-striker Barclay, IP's decision to discharge          the four strikers did not constitute disparate treatment.           Essentially, the Board found that Barclay's behavior was          provoked, and hence less serious than the strikers' misconduct,          which, in each instance, was instigated by the striker.                       We think that substantial evidence exists in the          record to support the Board's finding that Barclay was provoked.           Before confronting the strikers, Barclay had been harassed at his          home by a group of strikers.  As we have observed, there was          evidence suggesting that strikers had blown air horns from their          boats in front of his house, shouted obscenities, threatened him,          and fired a projectile through his window, showering his son with                                            ____________________            3.  IP  insists that  because  Barclay's  misconduct was  not            similar to any of the acts committed by the five strikers, it            is  not  appropriate  for  disparate  treatment  purposes  to            compare their behavior with his.  However, only the rarest of            disparate treatment cases would involve identical allegations            of misconduct.   Adoption of IP's  position would, therefore,            effectively  foreclose  disparate treatment  analysis  in the            vast majority of these kinds of cases.  Because we  find such            a  requirement  to  be   unduly  stringent,  we  reject  IP's            argument.                                          -10-                                          10          glass.  It was only after these violent threats and acts that          Barclay confronted a group of strikers with a baseball bat and          angrily threatened them.                        In contrast, the record is devoid of evidence          suggesting that the actions of strikers Chicoine, Flagg, Hamlin          and Storer had been provoked in any way.  Although we do not          condone Barclay's conduct, we think the Board's conclusion that          his provoked behavior was less egregious than the unprovoked          actions of the four strikers was a reasonable one under the          circumstances.  Accordingly, we uphold the Board's decision          rejecting the disparate treatment claims of Chicoine, Flagg,          Hamlin, and Storer.          2.  Striker Bilodeau          2.  Striker Bilodeau          ____________________                      The Board also adopted the ALJ's conclusion that the          misconduct of Barclay was more flagrant than that of Bilodeau,          and that IP therefore acted unlawfully by discharging Bilodeau          but merely issuing a warning to Barclay.  The ALJ's conclusion          was based on his finding that (a) Barclay's threat was one of          physical injury and was therefore more serious than Bilodeau's          threat to property, and (b) Bilodeau's threat was "less than          explicit."                        The major difference between the conduct of Bilodeau          and Barclay, in our view, is that Barclay made his threat with a          baseball bat in hand, and thus possessed an immediate ability to          act on the threat.  Bilodeau, on the other hand, made his threat                                         -11-                                          11          while standing in the road in front of the replacement worker's          house, with no apparent ability or intent to immediately carry          out his threat.  Record evidence, therefore, supports the ALJ's          conclusion that Barclay's behavior was more egregious than that          of Bilodeau.  See Associated Grocers, 562 F.2d at 1336                        ___ __________________          (explaining that courts should evaluate threats in light of all          the surrounding circumstances).            B.  Miscellaneous          B.  Miscellaneous          _________________                      The Union raises two subsidiary arguments, each of          which we find unpersuasive.  First, the Union argues that,          because IP failed to obtain the strikers' first-hand accounts of          the incidents, it could not, as a matter of law, have fashioned          an honest belief that the strikers committed the misconduct for          which they were discharged.  As the record reveals, however, a          number of eye-witnesses were present at each of the incidents.           In fact, two of the episodes were captured on videotape.           Further, evidence in the record supports a finding that IP relied          on these eye-witness accounts and the videotape.  Thus, although          IP's understanding of the events would undoubtedly have been          fortified by interviews with each striker, we cannot say that the          failure to conduct striker interviews, given this direct          evidence, rendered their decision to discharge those strikers          unlawful.                        The Union also argues that IP condoned the strikers'          conduct when it sent each striker a form letter on February 1,                                         -12-                                          12          March 24, and September 23, 1988, outlining the reinstatement          rights of striking employees.  Condonation exists only when clear          and convincing evidence is present showing an employer's desire          "to forgive" the guilty employee for the misconduct.  See Jones &                                                                ___ _______          McKnight, Inc. v. NLRB, 445 F.2d 97, 103 (7th Cir. 1971). See          ______________    ____                                    ___          also Woodlawn Hosp. v. NLRB, 596 F.2d 1330, 1341 (7th Cir. 1979)          ____ ______________    ____          (holding that condonation exists only "where the employer has          clearly indicated forgiveness").  We agree with the ALJ's          conclusion, adopted by the Board, that a form letter sent to          approximately 1250 workers, informing the striking employees of          their statutory right to reinstatement under certain          circumstances, falls well short of clear and convincing evidence          that IP condoned the misconduct of the five strikers.4           Accordingly, the Union's condonation argument is unavailing.5                                          V.                                          V.                                          __                                      Conclusion                                      Conclusion                                      __________                      Because we find that the Board correctly applied the          law and that substantial evidence in the record supports all of          the Board's findings, we grant enforcement of the Board's order          in its entirety.                                            ____________________            4.  Because we  agree with  the Board's conclusion  that IP's            decision to  discharge strikers  Chicoine, Flagg,  Hamlin and            Storer  was  not  discriminatory,  we  need  not  reach  IP's            alternative  argument that  the  Union's claims  as to  those            strikers are time-barred  under section 10(b) of  the Act, 29            U.S.C.   160(b).            5.  We  have reviewed the  remainder of IP's  and the Union's            arguments and find them to be without merit.                                         -13-                                          13                      Affirmed.  No costs.                      ________   ________                                         -14-                                          14
