

                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 &amp; 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 &amp; 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-
