Shamrock Foods Co. v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted September 25, 2003 Decided October 21, 2003

No. 02-1278

SHAMROCK FOODS COMPANY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

02–1323

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

Scott V. Kamins was on the brief for petitioner.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Charles Donnelly, Supervisory Attorney, and Jeffrey L.

Horowitz, Attorney, National Labor Relations Board, were on

the brief for respondent.

Before: HENDERSON, TATEL and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Shamrock Foods Company peti-

tions for review of a decision and order of the National Labor

Relations Board (NLRB), and the Board cross-applies for

enforcement of its order. The Board found that Shamrock

violated section 8(a)(1) of the National Labor Relations Act

(NLRA), 29 U.S.C. § 158(a)(1), by, among other things, dis-

charging an employee for allegedly committing misconduct in

the course of soliciting his co-workers for the union. For the

reasons set forth below, we deny Shamrock’s petition for

review and grant the Board’s cross-application for enforce-

ment.1

I

Shamrock is a wholesale distributor and seller of food

products that maintains offices nationwide. We are con-

cerned here with activities that took place at Shamrock’s

Phoenix, Arizona facility, which employs some 500 warehouse

workers and drivers. In April 1998, Teamsters Local Union

No. 104 began a campaign to organize the Phoenix employees.

In pursuit of that goal, the union filed a petition for a

representation election on June 16, 1998. Four months later,

the union charged Shamrock with committing unfair labor

practices in connection with the organizing campaign. Based

on that charge, the NLRB’s General Counsel issued a com-

plaint against Shamrock. The complaint alleged, inter alia,

multiple violations of section 8(a)(1), which makes it unlawful

for an employer ‘‘to interfere with, restrain, or coerce employ-

ees in the exercise of’’ their rights to join or assist a labor

organization. 29 U.S.C. § 158(a)(1); see id. § 157.

1This case was considered on the record from the NLRB and on

the briefs submitted by the parties. See Fed. R. App. P. 34(a)(2);

D.C. Cir. Rule 34(j).

3

After a two-day hearing, an Administrative Law Judge

(ALJ) sustained the General Counsel’s complaint in part.

With one exception, the Board affirmed. See Shamrock

Foods Co., 337 N.L.R.B. No. 138 (July 30, 2002). In its

petition for review, Shamrock raises multiple objections to the

NLRB’s decision. The standard of review we apply to such

objections is one we have stated many times before: ‘‘We

must uphold the judgment of the Board unless, upon review-

ing the record as a whole, we conclude that the Board’s

findings are not supported by substantial evidence, TTT or

that the Board acted arbitrarily or otherwise erred in apply-

ing established law to the facts of the case.’’ Pioneer Hotel,

Inc. v. NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999) (internal

quotation marks and citation omitted).

In the following parts, we examine Shamrock’s challenges

to two of the NLRB’s determinations: (1) that Shamrock

unlawfully discharged employee Vincent D’Anella; and (2)

that it unlawfully interrogated employee David Trujillo.

Shamrock’s other challenges to the NLRB’s determinations

require no elaboration by this court, and we deny them for

the reasons set forth by the Board and its ALJ.

II

We begin our discussion with Shamrock’s discharge of

Vincent D’Anella, a widely acknowledged leader of the 1998

unionization effort. At the time of his October 8, 1998,

discharge, D’Anella had been working for Shamrock for al-

most five years and had a spotless record. See Shamrock

Foods Co., 337 N.L.R.B. No. 138, at 7 (ALJ Op.). Although

Shamrock admits that it discharged D’Anella during the

organizing campaign, it maintains that it did so not for his

unionization efforts, but because he physically threatened

fellow workers Chris Hargenrader and Daniel Brooks in

connection with soliciting them for union authorization cards.

The ALJ and the Board analyzed D’Anella’s discharge

utilizing the framework approved by the Supreme Court in

NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Under

Burnup & Sims, ‘‘§ 8(a)(1) is violated if it is shown that the

4

discharged employee was at the time engaged in a protected

activity, that the employer knew it was such, that the basis of

the discharge was an alleged act of misconduct in the course

of that activity, and that the employee was not, in fact, guilty

of that misconduct.’’ 379 U.S. at 23; see Cadbury Beverages,

Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998). In this case,

the first three parts of the Burnup & Sims inquiry are easily

satisfied: it is clear that D’Anella was engaged in protected

activity when he solicited his co-workers for the union; there

is no doubt that Shamrock knew that such activity was

protected; and the express basis for the discharge was

D’Anella’s alleged misconduct in the course of that otherwise

protected activity. See Shamrock Foods Co., 337 N.L.R.B.

No. 138, at 7 (ALJ Op.) (‘‘Respondent charges that D’Anella

threatened two employees TTT with ‘violent repercussions

related to his efforts to secure their support for the Team-

stersTTTT’ ’’ (quoting Shamrock’s NLRB Reply Br. at 2)

(emphasis added)).

The only remaining question is whether D’Anella did, in

fact, threaten the two employees. The evidence that he did

rested largely on the testimony of Hargenrader and Brooks.

D’Anella, however, denied making the threats; indeed, he

testified that he did not even know Brooks and that he had

never solicited Brooks’ union card. D’Anella’s testimony on

the latter point was corroborated by employee Luigi Baratta,

who testified that it was he who solicited Brooks’ card and

that D’Anella was not present at the time. In light of this

clash of testimonies, ‘‘the case turn[ed] primarily on credibili-

ty resolutions by the trier of fact as to the various accounts

provided concerning the purported threats.’’ Shamrock

Foods Co., 337 N.L.R.B. No. 138, at 8 (ALJ Op.). Based both

on the ‘‘testimonial demeanor’’ of the company’s witnesses,

and on their behavior subsequent to the allegedly threatening

conversations, the ALJ concluded that ‘‘the accounts of

threats and intimidation attributed to D’Anella by Hargen-

rader and Brooks lack any credible quality.’’ Id. at 10. The

ALJ thus determined that D’Anella had not engaged in the

alleged misconduct, and, following Burnup & Sims, concluded

that Shamrock violated section 8(a)(1) by discharging him.

5

Shamrock disputes the NLRB’s determination on a number

of grounds. First, it argues that the Board’s finding that

D’Anella did not threaten his co-workers is unsupported by

substantial evidence. That contention cannot be sustained,

however, as the Board’s finding was supported by the testi-

mony of both D’Anella and Baratta. Although Hargenrader

and Brooks testified to the contrary, the ALJ did not find

them credible. And while Shamrock urges us to set that

finding aside, ‘‘we do not reverse the Board’s adoption of an

ALJ’s credibility determinations unless, unlike here, those

determinations are ‘hopelessly incredible,’ ‘self-contradictory,’

or ‘patently unsupportable.’ ’’ Cadbury Beverages, Inc., 160

F.3d at 28 (quoting Capital Cleaning Contractors, Inc. v.

NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998)); see Vico Prod-

ucts Co., Inc. v. NLRB, 333 F.3d 198, 209 (D.C. Cir. 2003).

Second, Shamrock contends that the Board misapplied the

Burnup & Sims test by refusing to give the company an

opportunity to demonstrate that, even if the threats were

never made, it had a good faith belief that they were. This

argument, however, misapprehends Burnup & Sims. As the

Supreme Court made clear in that case, the employer’s good

faith is simply not relevant if the misconduct did not occur:

‘‘Over and again the Board ha[s] ruled that § 8(a)(1) is

violated if the employee is discharged for misconduct arising

out of a protected activity, despite the employer’s good faith,

when it is shown that the misconduct never occurred.’’ Burn-

up & Sims, 379 U.S. at 23 (emphasis added).2 The Court

explained the rationale for that rule as follows:

2 See Cadbury Beverages, 160 F.3d at 29 (‘‘In cases involving

employee discipline for alleged misconduct in the course of a

protected activity that the employer knew was protected, an em-

ployer violates section 8(a)(1) if it is proven that the alleged

misconduct did not occur, whether or not the employer acted in

good faith.’’); Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1222

(6th Cir. 1990) (same); Allied Indus. Workers, AFL–CIO Local

Union No. 289 v. NLRB, 476 F.2d 868, 880 (D.C. Cir. 1973) (same).

6

Th[e] rule seems to us to be in conformity with the policy

behind § 8(a)(1). Otherwise the protected activity would

lose some of its immunity, since the example of employ-

ees who are discharged on false charges would or might

have a deterrent effect on other employees. Union

activity often engenders strong emotions and gives rise

to active rumors. A protected activity acquires a precar-

ious status if innocent employees can be discharged while

engaging in it, even though the employer acts in good

faith. It is the tendency of those discharges to weaken

or destroy the § 8(a)(1) right that is controlling.

Id. at 23–24.

It is true that there is a burden-shifting element to the

Burnup & Sims test that involves proof of the employer’s

good faith: ‘‘If the employer establishes its honest belief [that

the discharged employee was guilty of the misconduct], the

burden shifts to the General Counsel to show that the miscon-

duct did not occur.’’ TCI Cablevision of Montana, Inc. v.

NLRB, 2002 WL 31818246, at *1 (D.C. Cir. 2002); see Burn-

up & Sims, 379 U.S. at 23 n.3.3 But in a case like this one, in

which the ALJ imposed the burden of proof on the General

Counsel from the outset, proof of good faith — which does

nothing more than place the burden on the General Coun-

sel — is unnecessary and irrelevant.

Third, Shamrock protests that the ALJ did not, in fact,

impose the burden of proof on the General Counsel as re-

quired by Burnup & Sims. There is no question, however,

that the ALJ properly assigned the burden. Indeed, his

opinion states both that ‘‘the General Counsel has the burden

of showing that the employee did not, in fact, commit the

misconduct,’’ Shamrock Foods Co., 337 N.L.R.B. No. 138, at

10, and that the ‘‘General Counsel has sustained his burden of

proving that Respondent violated Section 8(a)(1) by suspend-

3 See also Dallas Gen. Drivers v. NLRB, 389 F.2d 553, 554–55

(D.C. Cir. 1968); Pepsi-Cola Co., 330 N.L.R.B. 474, 474–75 (2000).

7

ing and discharging D’Anella,’’ id.4 Shamrock complains that,

despite what he said, the ALJ effectively shifted the burden

of proof to the company by basing his decision on his disbelief

of the company’s witnesses, rather than on affirmative evi-

dence that the alleged misconduct did not occur. But wheth-

er or not disbelief in the testimony of one party’s witnesses

can be sufficient to satisfy the opposing party’s burden of

proof in an NLRB proceeding,5 there was more than just

disbelief here. Rather, the ALJ relied on D’Anella’s direct

testimony that he neither threatened nor harassed his fellow

employees, testimony that was corroborated in important part

by both Baratta and another employee, Frank Meza.

Finally, Shamrock argues that the Board erred by using

the Burnup & Sims test in the first place, rather than

applying the better-known Wright Line formula. See Wright

Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st

Cir. 1981); see also NLRB v. Transportation Mgmt. Corp.,

462 U.S. 393, 399–401 (1983). Under Wright Line, the Gener-

al Counsel must first show that the employee’s ‘‘protected

conduct was a ‘motivating factor’ in the employer’s decision’’

to take an adverse employment action. Wright Line, 251

4 As Shamrock notes, at one point the ALJ referred to, and

rejected, what he characterized as Shamrock’s ‘‘affirmative de-

fense’’ — a reference that Shamrock interprets as requiring it to

bear the burden of proof. Shamrock Foods Co., 337 N.L.R.B. No.

138, at 10 (ALJ Op.). In context, however, it is clear that the ALJ’s

reference was not to the burden of proof under Burnup & Sims,

but to Shamrock’s claim that the company was entitled to an

affirmative defense of good faith under the Wright Line test. The

Board itself disavowed the ALJ’s entire discussion of good faith,

correctly concluding — as we discuss below — that Wright Line is

inapplicable here. See id. at 1.

5 Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

147 (2000) (noting, in a Title VII case, that ‘‘[i]n appropriate

circumstances, the trier of fact can reasonably infer from the falsity

of the explanation that the employer is dissembling to cover up a

discriminatory purpose’’); United States v. Zeigler, 994 F.2d 845,

848–50 (D.C. Cir. 1993) (highlighting problems that this issue poses

for appellate review of jury verdicts).

8

N.L.R.B. at 1089. ‘‘Once this is established, the burden TTT

shift[s] to the employer to demonstrate that the same action

would have taken place even in the absence of the protected

conduct.’’ Id.; see Tasty Baking Co. v. NLRB, 254 F.3d 114,

125–26 (D.C. Cir. 2001). Wright Line is the test the Board

uses when an employer has discharged (or disciplined) an

employee for a reason assertedly unconnected to protected

activity — for example, poor performance. In such cases, the

central question is whether the discharge was motivated by

anti-union animus, and the Board uses variations on Wright

Line’s burden-shifting framework to test the veracity and

sufficiency of the employer’s explanation. See Wright Line,

251 N.L.R.B. at 1083–84 (discussing pretext and dual motive

cases); see also Transportation Mgmt. Corp., 462 U.S. at

398–400; Southwest Merchandising Corp. v. NLRB, 53 F.3d

1334, 1339 n.7 (D.C. Cir. 1995).

As the Board explained below, however, and as this court

has explained before, Wright Line is inapplicable to cases —

like this one — in which the employer has discharged the

employee because of alleged misconduct ‘‘in the course of’’

protected activity. Shamrock Foods Co., 337 N.L.R.B. No.

138, at 1; see Cadbury Beverages, 160 F.3d at 29 n.4 (reject-

ing the applicability of Wright Line to such cases); E.W.

Grobbel Sons, 322 N.L.R.B. 304, 304–05 (1996) (same), en-

forcement denied on other grounds, 149 F.3d 1183 (6th Cir.

1998). In such cases, Burnup & Sims makes clear that the

employer’s ‘‘motive is not at issue,’’ and that the only question

is whether the alleged misconduct actually occurred. Sham-

rock Foods Co., 337 N.L.R.B. No. 138, at 1; see Cadbury

Beverages, 160 F.3d at 29 (holding that ‘‘Burnup & Sims

explicitly obviates the need to inquire into intent’’). Accord-

ingly, the Wright Line test — the function of which is to

ferret out the motives for a discharge — is inapplicable. As

we explained in Cadbury Beverages, the Wright Line analysis

‘‘is generally appropriate in the sort of case in which the

general counsel’s charge is based on an unlawful motive — it

gives the employer the opportunity to prove that, despite any

unlawful motive, the same action would have occurred pursu-

ant to some additional, lawful motive.’’ 160 F.3d at 29 n.4.

9

‘‘But since Burnup & Sims imposes liability for an employ-

ment action erroneously taken because of alleged misconduct,

regardless of motive, TTT it is plainly irrelevant whether [the

employer’s] proffered reason for acting was pretextual’’ or

whether it would have taken the same action for a lawful

reason. Id.

Shamrock contends that, the above notwithstanding, this

case cannot be distinguished from Frazier Industrial Co.,

Inc. v. NLRB, 213 F.3d 750, 757 (D.C. Cir. 2000), in which we

applied Wright Line to similar facts. But Frazier is not

inconsistent with the Burnup & Sims framework. Unlike

Shamrock, the employer in Frazier gave not one but two

rationales for discharging a union organizer. First, as in this

case, the employer contended that it fired the employee

because he had engaged in unprotected harassment in the

course of his otherwise protected efforts to persuade co-

workers to sign union authorization cards. Frazier Indus.

Co., 213 F.3d at 756. Although we did not mention Burnup &

Sims, our analysis of this first claim was consistent with our

analysis here: we asked only whether the alleged harassment

actually occurred, and, after determining that it did not, we

did not further inquire into the employer’s good faith. Id. at

756–59.6

Having rejected the employer’s first claimed rationale, we

then turned to its second: that ‘‘even if [the employee’s]

actions constituted protected activities, its termination of [his]

employment was lawful because it would have discharged him

in the absence of protected conduct for his insubordination

and dishonesty.’’ Id. at 756; see id. at 759. This second

rationale was aptly characterized as ‘‘the company’s Wright

Line defense,’’ because the misconduct to which it referred —

insubordination and dishonesty — was not alleged to have

occurred in the course of protected union solicitation, but

rather during a subsequent conversation between the employ-

6That analysis was conducted in connection with the first step in

the Wright Line test, which asks whether ‘‘protected activity’’

motivated the adverse employment action. Frazier Indus. Co., 213

F.3d at 755–56 (citing Wright Line, 251 N.L.R.B. at 1089).

10

ee and his supervisor. Id. at 759–60.7 Shamrock, by con-

trast, did not offer a rationale for firing D’Anella that was

unconnected to his union activity, and the Board therefore

rightly declined to apply Wright Line to this case.

In sum, we conclude that the NLRB properly applied the

Burnup & Sims test to the discharge of D’Anella, and that

the Board’s conclusion that Shamrock violated section 8(a)(1)

is supported by substantial evidence.

III

We next consider the NLRB’s determination that Sham-

rock’s night-shift manager, Bud Shalley, unlawfully interroga-

ted warehouse worker David Trujillo about the union’s orga-

nizing efforts. Trujillo testified that on or about June 4, 1998,

in the midst of the organizing campaign, Shalley approached

him while he was sitting alone in a warehouse office complet-

ing paperwork. After a few moments of small talk, Shalley

asked Trujillo if he had heard anything about the union and

whether D’Anella had asked Trujillo to sign a union card.

When Trujillo answered that he had ‘‘not yet’’ been asked,

Shalley walked out of the office. J.A. at 83. A few days

later, on June 9, Shalley again approached Trujillo in the

warehouse office. This time, Shalley said: ‘‘I can’t believe

Vinnie [D’Anella] hasn’t come to you yet about the union.’’

When that remark failed to evoke a response, Shalley fol-

lowed up with: ‘‘Well, if you find out that Vinnie’s trying to

hand out union cards, let me know.’’ Id. at 83–84. Trujillo

testified that he promised Shalley that he would keep his

‘‘eyes open.’’ Id. at 84; see Shamrock Foods Co., 337

N.L.R.B. No. 138, at 4 (ALJ Op.).

Although Shalley denied that either conversation took

place, the ALJ credited Trujillo’s account and concluded that

7 Applying Wright Line, we went on to hold that the Board

reasonably rejected the employer’s defense because ‘‘[s]ubstantial

evidence support[ed] the Board’s finding that [the plant manager]

decided to terminate [the employee] for the union activities, and not

for insubordination and dishonesty.’’ Frazier Indus. Co., 213 F.3d

at 759.

11

the conversations, as described by Trujillo, violated section

8(a)(1). The Board affirmed. In its petition for review,

Shamrock contends both that the conversations never took

place, and that even if they did, they did not violate the

NLRA.

We first address Shamrock’s fallback argument that even if

the conversations did occur, they were not unlawful. This

argument requires little discussion. The questioning of an

employee about union activities or sympathies constitutes

unlawful interrogation ‘‘if, under all the circumstances, it

reasonably tends to restrain, coerce, or interfere with rights

guaranteed by the Act.’’ Perdue Farms, Inc. v. NLRB, 144

F.3d 830, 835 (D.C. Cir. 1998) (internal quotation marks

omitted). Here, in the midst of a heated union campaign, a

Shamrock manager twice approached Trujillo — who was not

an open union supporter — and questioned him about the

activities of a union organizer, eliciting a promise from the

employee that he would keep his ‘‘eyes open.’’ J.A. at 84.

The questioning was unaccompanied by any assurance against

reprisal, took place when Trujillo was alone, and had no

apparent legitimate purpose. Recognizing the Board’s

‘‘ ‘competence in the first instance to judge the impact of

utterances made in the context of the employer-employee

relationship,’ ’’ Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d

99, 106 (D.C. Cir. 2003) (quoting NLRB v. Gissel Packing Co.,

395 U.S. 575, 620 (1969)), we find nothing unreasonable in the

Board’s conclusion that these conversations, if they occurred

as alleged, were sufficiently coercive to violate the Act. See,

e.g., Perdue Farms, 144 F.3d at 835–36; Avecor, Inc. v.

NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991); Timsco Inc. v.

NLRB, 819 F.2d 1173, 1176–80 (D.C. Cir. 1987); Midwest

Reg’l Joint Bd. v. NLRB, 564 F.2d 434, 443 (D.C. Cir. 1977).

Shamrock’s principal contention is that substantial evidence

does not support the ALJ’s finding that the conversations

between Shalley and Trujillo took place at all. But there

plainly is such evidence: namely, Trujillo’s own testimony.

And while, as the ALJ recognized, ‘‘Shalley flatly denied

Trujillo’s assertions,’’ Shamrock Foods Co., 337 N.L.R.B. No.

12

138, at 4 n.6, we must defer to the judge’s assessment that

Shalley’s testimony was not credible, id.

Shamrock argues that Shalley’s claim, that he did not talk

to Trujillo about the union on June 4 or 9, is proven by the

fact that he did not even know about the union’s organizing

efforts until later that month. Although the ALJ acknowl-

edged Shalley’s claim of ignorance, he also noted that Frank

Meza, a warehouse employee and union supporter, had testi-

fied to the contrary. According to Meza, an ‘‘upset’’ Shalley

spoke to him about unionization around June 1, 1998, saying

‘‘[w]e really don’t need a union unless you’re mistreated’’ and

‘‘[t]hey don’t need a union here.’’ Id. at 3 (quoting J.A. at 98).

After evaluating both Shalley’s and Meza’s testimony, the

ALJ concluded: ‘‘[Shalley] claims that he first learned of the

union drive and D’Anella’s activity later in June. However,

as Meza’s account of an earlier conversation is uncontradict-

ed, I do not credit Shalley’s denials here.’’ Id. at 4 n.6.

Shamrock seizes on the word ‘‘uncontradicted’’ in the pre-

ceding quotation, insisting that it demonstrates that the ALJ

was unfamiliar with the factual record. Meza’s account was

not ‘‘uncontradicted,’’ Shamrock points out, because Shalley

himself contradicted it by denying that he had ever spoken

with Meza about the union. According to Shamrock, the

ALJ’s ‘‘ignorance of the record’’ on this point means that his

decision rests on a ‘‘mistaken notion,’’ and hence that it

cannot be sustained. Shamrock Reply Br. at 21.

But Shamrock is grasping at straws. There is no doubt

that the ALJ knew full well that Shalley had denied speaking

with Meza, because the ALJ expressly said so at the outset of

the same section of his opinion. See Shamrock Foods Co.,

337 N.L.R.B. No. 138, at 3 (‘‘Shalley denied that he made the

statements attributed to him by employees Frank Meza and

David Trujillo detailed below.’’). It is clear, then, that the

ALJ was fully conversant with the record and simply conclud-

ed that Meza’s testimony was uncontradicted by credible

evidence. And as the ALJ’s decision to credit the testimony

of Meza and Trujillo rather than that of Shalley is not

‘‘patently unsupportable,’’ we must and do defer to it. Tasty

13

Baking, 254 F.3d at 124 (internal quotation marks omitted).

Accordingly, we have no cause to set aside the Board’s

conclusion that Shamrock, through Shalley, unlawfully inter-

rogated David Trujillo in violation of section 8 (a)(1).

IV

For the foregoing reasons, we deny Shamrock’s petition for

review and grant the Board’s cross-application for enforce-

ment of its order.