# National Labor Relations Board v. Kiawah Island Company, Ltd.

> Court of Appeals for the Fourth Circuit · May 27, 1981 · 650 F.2d 485

URL: https://www.frixlaw.com/law-library/cases/9468014

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KIAWAH ISLAND COMPANY, LTD., Respondent
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** May 27, 1981
- **Citations:** 650 F.2d 485; 107 L.R.R.M. (BNA) 2599; 1981 U.S. App. LEXIS 12883
- **Precedential status:** Published
- **Opinion:** Concurring in part by Winter
- **Judges:** Winter, Sprouse, Ervin
- **Cited by:** 16 later opinions in the Frix Law Library

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## Opinion text

*492 WINTER, Circuit Judge,
concurring and dissenting:
While I concur in the majority’s conclusion that substantial evidence supports the Board’s finding of § 8(a)(1) violations, I think that substantial evidence in the record as a whole also supports the Board’s conclusion that Kiawah discriminatorily discharged Hymes and Murray in violation of § 8(a)(3) of the Act because of their efforts to bring about union representation at the Inn. I therefore respectfully dissent from that portion of the majority’s opinion setting aside the finding of a § 8(a)(3) violation and declining to enforce the portion of the Board’s order based thereon.
The record reflects the difficulties experienced by Kiawah in maintaining health standards in its dining facilities. The essential question before us is whether those difficulties were the sole motivation for Kiawah’s discharge of Hymes and Murray, or whether the Board has met its burden of demonstrating that an unlawful discriminatory motive was a factor in the decision. See Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569-70 (4 Cir. 1977). The direct evidence in the record of discriminatory motive is relatively slight, but, to my mind, the circumstantial evidence is sufficiently compelling to support the Board’s conclusion.
The discharges did not occur until March 2, 1977, over three months after the last state health inspection, conducted on November 30, 1976, but only thirty-nine days after Kiawah began its campaign to forestall union representation at the Inn. The majority apparently agrees that there is substantial evidence to support the Board’s finding that Kiawah was well aware of unionizing activities. As I view the record, Hymes and Murray were the prime movers to organize the employees and Kiawah was well aware of their role. In any event, the state inspector testified that his November 30 review of the Inn’s kitchen revealed deficiencies not only in the cleanliness of the kitchen and its equipment but also in the handling of food, an activity for which Hymes and Murray had no responsibility. Even subsequent to the discharges of Hymes and Murray the state health authorities continued to find serious deficiencies in the Inn’s kitchen operations, and Kiawah offered evidence that it fired the Chief Chef, the Food and Beverage Director, and their respective successors as a result. Their terminations are entirely consistent with the conclusion of Kiawah vice-president Taylor’s memorandum responding to the November 30 inspection in which. he stated that: “The grade of the restaurant is in direct correlation to management effectiveness.” But Kiawah’s discharges of Hymes and Murray cannot be said to be entirely consistent with the memorandum, because Kiawah significantly terminated only Hymes and Murray among its kitchen employees despite the continuing health problems with the kitchen operations. Except for the discharges of Hymes and Murray, the evidence shows that Kiawah held its kitchen managers accountable for the deficiencies. It is noteworthy that the discharges of Hymes and Murray did not lead to any improvement in the kitchen cleaning, despite the testimony in the record suggesting that Hymes and Murray performed their tasks poorly.
The immediate circumstances of the discharges of Hymes and Murray appear particularly suspect when viewed in light of all of the evidence of Kiawah’s efforts to upgrade sanitary standards in the Inn’s kitchen and its campaign against union representation. Kiawah restructured its kitchen cleaning operations in early December 1976, relieving Hymes of his supervisory duties and allegedly placing full responsibility for cleanliness with Chief Chef Charvet. Kiawah clearly did not hold Hymes responsible for its previous difficulties with the state health authorities. Although Charvet apparently sought to terminate Hymes, Kiawah officially stated that its reason for the demotion was managerial error in establishing the supervisory position and that Hymes would be considered for a comparable post were one to become available. After Kiawah became aware of pro-union activity among the employees at the Inn, it established a' formal Disciplinary Action Policy on January 25, 1977, which, according to the company, merely documented the “essence” of prior disciplinary “practice.” The policy provided for suspension and possible discharge in the event of repeated *493 reprimands. Hymes and Murray never received a reprimand. Kiawah first suspended them and eventually discharged them.
On February 16, Kiawah issued its first disciplinary suspension to Hymes for allegedly falsely punching in Murray’s time card on February 12 when he was absent. It took this action despite the fact that Hymes not only denied this infraction but notified a company supervisor of Murray’s absence at the time and admitted a day later that he left work during the shift to bring Murray to work. Moreover, Kiawah disciplined him without investigating the possibility that another of the four or five employees in the area punched Murray’s card.
On February 18, after an inspection of the kitchen by the Food and Beverage Director, Kiawah suspended Hymes and Murray for three days because of the unsatisfactory cleanliness of the kitchen. It took this action solely against Hymes and Murray without disciplining the apparently absent third member of the night-cleaning crew, one Solomon Stanley, despite the inspection report’s notations of “accumulations” of grease and dirt. In addition, Chief Chef Charvet attributed-other deficiencies noted in the report to dishwashers and cooks who were similarly not disciplined. Finally, the suspension was the first disciplinary action taken by Kiawah against cleaning employees after seven months of problems. Previously, these problems had been addressed on an ad hoc basis and corrected. The employees had received no disciplinary warnings and Kiawah conceded that the problems noted in the February 18 inspection were of the same character as problems previously noted.
Another inspection was conducted by another Kiawah officer on February 26, and it revealed unsatisfactory conditions in the kitchen. On March 2, Kiawah discharged Hymes and Murray, but the third night-cleaning crew member, Stanley, merely received a warning, as did two dishwashers.
These circumstances, demonstrating a gross disparity of treatment between Hymes and Murray and other kitchen employees responsible for cleaning, amply support the Board’s conclusion that Kiawah’s asserted motivation for the discharges was a pretext and that in fact the disciplinary sanctions against Hymes and Murray which were begun in February were pursued to the point of discharge because of their active solicitation of employees of the Inn on behalf of the union. As we explained in Neptune Meter, the rule articulated in Firestone Tire and Rubber Co. v. NLRB, 539 F.2d 1335, 1337 (4 Cir. 1976), requiring the Board to find “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one . ..
is not to be read to mean that there is a dichotomy between good and bad reasons. It does not change the rule in this circuit that discriminatory motivation need be only a factor in the discharge. Rather, [Firestone] made clear that where there is evidence of a proper motive for dismissal, the Board’s mere characterization of the Company’s assigned reason as “pretextual,” without citation of evidence indicating invidious purpose, will not suffice.
551 F.2d at 569 . I think that substantial evidence in the record supports the Board’s finding that Kiawah would not have singled out Hymes and Murray for the extraordinary disciplinary action of discharge except for their pro-union activity. I accordingly would enforce the Board’s order to reinstate these two men.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468014. Public record. Not legal advice.