Petition for Writ of Certiorari — Superior Protection, Inc. v. National Labor Relations Board

Supreme Court, U.S.

(1) FILED

Ne. 04-529 0CT 18 2004

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

SUPERIOR PROTECTION, INC.,

Petitioner,

v.

N.L.R.B.

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael Jay Kuper Raymond L. Kalmans

(Counsel of Record) SCHLANGER, MILLS,

MICHAEL JAY KUPER, A MAYER & SILVER, LLP

Professional Corporation 109 North Post Oak, Suite 300

2800 Post Oak Blvd., 61" Fl. Houston, Texas 77024

Houston, Texas 77056 713-785-1700

(713) 892-4888 (713) 785-2091 fax

(713) 892-4828 Attorneys for Plaintiff

i

QUESTIONS PRESENTED FOR REVIEW

:.

Whether the discharge of a security guard at a federal

office for lying under oath in a National Labor Relations

Board the (“Board”) representation case hearing is a

violation of the National Labor Relations Act because the

employee was testifying in behalf of the union seeking

representation, even though lying to a public official is

grounds for discharge under the General Services

Administration (GSA) contract with his employer covering

his employment.

2.

Whether in any event the discharged security guard is

not entitled to reinstatement or back pay under the after-

acquired evidence doctrine because, at the time of his

discharge, it was discovered that he was in further violation

of the (G.S.A.) contract because his gun was dirty and he was

carrying in excess of the maximum ammunition, both

offenses being serious infractions of GSA contract rules.

il

STATEMENT OF INTERESTED PARTIES

The parties to the proceedings in the United States

Court of Appeals for the Fifth Circuit were:

Superior Protection, Inc. - Petitioner

Michael Jay Kuper - Counsel for Petitioner

Raymond L. Kalmans - Counsel for Petitioner

National Labor Relations Board - Respondent

David Seid - Counsel for Respondent

Aileen Armstrong - Counsel for Respondent

Meredith Jason - Counsel for Respondent

Curtis Wells - N.L.R.B. District 16 - Regional Director

James Carney - USGOA Local 1225 President

ill

TABLE OF CONTENTS

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Appendix

iV

TABLE OF CITED AUTHORITIES

ases

ABF Freight System, Inc. v. NLRB, 510 U.S. 317

CoP e aise sisdaeshuiniinantniaiighaipedeilotbatlsanipsibuincasaichiasaieiia 3

Hoffman Plastic Compounds, Inc., 535 U.S. 137

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Statutes

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29 U.S.C. § 158(a) (1), (3) amd (4)...cccccseccccssecscsseessssecesssseeeen 1

l

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is non-published. The citation of the

Decision and Order of the National Labor Relations Board is

339 N.L.R.B. No. 118 (2003).

STATEMENT OF JURISDICTION

This Court has jurisdiction over this petition pursuant

to 28 U.S.C. § 1254(1) because the petition asks the Court to

issue a writ of certiorari to review a case in the United States

Court of Appeals for the Fifth Circuit. The Court of Appeals

entered its opinion on July 26, 2004. This petition is being

filed with the Clerk of this Court within 90 days from the

date of the judgment. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

29 U.S.C. § 158(a) (1), (3) and (4) Unfair labor practices

a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in

section 157 of this title...

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of

employment to encourage or discourage

membership in any labor organization:

Provided, That nothing in this subchapter, or

in any other statute of the United States, shall

preclude an employer from making an

agreement with a labor organization (not

(4)

2

established, maintained, or assisted by any

action defined in this subsection as an unfair

labor practice) to require as a condition of

employment membership therein on or after

the thirtieth day following the beginning of

such employment or the effective date of such

agreement, whichever is the later, (i) if such

labor organization is the representative of the

employees as provided in section 159(a) of

this title, in the appropriate collective-

bargaining unit covered by such agreement

when made, and (ii) unless following an

election held as provided in section 159(e) of

this title within one year preceding the

effective date of such agreement, the Board

shall have ceriified that at least a majority of

the employees eligible to vote in such election

have voted to rescind the authority of such

labor organization to make such an

agreement: provided further, That no

employer shall justify any discrimination

against an employee for non-membership in a

labor organization (A) if he has reasonable

grounds for believing that such membership

was not available to the employee on the same

terms and conditions generally applicable to

other members, or (B) if he has reasonable

grounds for believing that membership was

denied or terminated for reasons other than

the failure of the employee to tender the

periodic dues and the initiation fees uniformly

required as a condition of acquiring or

retaining membership;

to discharge or otherwise discrimination

against an employee because he has filed

charges or given testimony under this

subchapter;

3

STATEMENT OF THE CASE

Petitioner Superior Protection, Inc., (“Superior”)

seeks review of a decision of the United States Court of

Appeals for the Fifth Circuit enforcing a decision and order

of the Board ordering, among other things, that Superior

offer reinstatement and pay back pay to a former employee,

Kelvin Trotter, a security guard at a federal office, who was

discharged for lying under oath at a Board representation

hearing. Lying under oath to a public official is grounds for

discharge under the GSA contract covering the guard’s

employment. When he was discharged, it was discovered that

his gun was dirty and that he was carrying in excess of the

maximum amount of ammunition allowable, both also

grounds for discharge under the GSA contract, and therefore,

under the after-acquired evidence doctrine, an additional

reason for not enforcing the Board decision and order.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit opinion in this case conflicts with

the opinion of this court in Hoffman Plastic Compounds,

Inc., 535 U.S. 137 (2002), in which this court reversed a

decision of the District of Columbia Circuit Court enforcing

a Board decision and order ordering back pay for an illegal

immigrant who had obtained his job using fraudulent

documents and was discharged for his activities on behalf of

a union. This court acknowledged the apparently undisputed

illegal employer conduct in violation of the National Labor

Relations Act, but refused to enforce the board back pay

order, holding

...that where the Board’s chosen remedy

trenches upon a federal statute or policy

outside the Board’s competence to administer,

the Board’s remedy may be required to yield.

Id at p. 7.

4

This court in Hoffman distinguished ABF Freight

System, Inc. v. NLRB, 510 U.S. 317 (1994), wherein, with

obvious great reluctance, a Board order was enforced

awarding reinstatement and back pay for an employer who,

like the employee in this case, lied under oath in a Board

hearing, and the Board, as in this case, found that the real

reason for the discharge was union animus, and not the false

sworn testimony. In ABF,' as in Hoffman,’ this court stated

with emphasis that the ruling in ABF was not to be

interpreted as a license for the Board to disregard false

testimony under oath, and/or fraudulent conduct. Of course,

in this case, as in Hoffman, the Board really crossed the line

in condoning conduct in violation of the rules of the G.S.A.,

the federal agency responsible for the security and protection

of federal workers.

CONCLUSION

For the foregoing reasons, this petition for writ of

certiorari should be granted.

' “False testimony in a formal proceeding is intolerable. We

must neither reward nor condone such a “flagrant affront” to

the truth-seeking function of adversary proceedings. /d at p.

322.

? “This court has consistently set aside the Board’s back pay

awards to employees found guilty of serious illegal conduct

in connection with their employment.” Hoffman, at p. 137.

5

Respectfully submitted,

Michael Jay Kuper

Counsel of Record

MICHAEL JAY KUPER, A

PROFESSIONAL CORPORATION

2800 Post Oak Blvd., 61* Floor

Houston, Texas 77056

(713) 892-4888

(713) 892-4828 fax

Raymond L. Kalmans

Schlanger, Mills, Mayer & Silver, LLP

109 North Post Oak Lane, Suite 300

Houston, Texas 77024

713-785-1700

713-785-2091 fax

Attorneys for Petitioner

APPENDIX

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 03-60880

NATIONAL LABOR RELATIONS BOARD, Petitioner

verses

SUPERIOR PROTECTION, INC., Respondent

Petition for Enforcement of Order of

The National Labor Relations Board

Nos. 16-CA-21399, 21495 and 10361

Filed July 26, 2004

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

A-2

Petitioner National Labor Relations Board (“NLRB”

or “Board”) seeks enforcement of its order commanding

Respondent Superior Protection, Inc. (“Superior”), its

officers, agents, successors and assigns, to cease and desist

(1) impliedly threatening employees in writing with

discharge or discipline for supporting United Government

Security Officers of America and its Local #229 or any other

union (collectively, “the Union”), (2) disciplining,

discharging or otherwise discriminating against any

employee for supporting the Union, (3) disciplining,

discharging or otherwise discriminating against employees

because they have given testimony under the National Labor

Relations Act (the “Act’’). The Board also seeks

enforcement of its order commanding Superior to reinstate

fired employee Kelvin Trotter to his former position, to make

him whole for loss of earnings and other benefits pursuant to

F.W. Woolworth Co., less any interim earnings and plus

interest as computed in New Horizons for the Retarded, to

remove from its files any reference to Trotter’s discipline and

discharge, to make various employment records available to

the Regional Director of the NLRB, and to post at its

Houston, Texas facility copies of a notice appended to the

order. Finally, the Board seeks enforcement of its order

instructing the Regional Director of the NLRB to open and

count Trotter’s contested ballot, serve a revised tally on the

parties, and issue the appropriate certificate. Superior resists

the enforcement of the orders or any portion or portions

thereof.

We have carefully considered the briefs of counsel

for the parties and the record of this case as supplemented,

including the extensive, highly detailed analysis of the

Administrative Law Judge (“ALJ”) of August 28, 2002, as

modified September 25, 2002. As a result, we conclude,

under the applicable “substantial evidence” standard of

review, that the NLRB’s order is reasonable, supported by

such evidence, and must ben enforced in full.

A-3

As the parties are fully conversant and familiar with

their respective burdens of proof and persuasion and with the

standards applicable to our review of cases under § 8(a)(3)

and (4) of the Act, we need not reiterate those standards here.

If suffices that when the Board charges an employer with

unfair labor practices under these subsections—discharging or

otherwise discriminating against an employee because he has

given testimony under the Act or discriminating by

terminating employment to discourage membership in a

labor organization—the general counsel’s burden of

persuasion is to demonstrate what protected activity of an

employee, if any, was a substantial motivating factor in an

adverse employment action taken by the employer against the

employee. If that burden is met, it becomes incumbent on

the employer to demonstrate that (1) it took the action

complained of on the basis of unprotected conduct, and (2) it

would have taken the same action in the absence of protected

conduct. An employer’s proffered non-discriminatory reason

and a determination that the adverse employment action

would have been taken even in the absence of protected

activity are nevertheless trumped by a demonstration of

pretext. The overarching principle is that reasonable

decision of the NLRB must be affirmed if it is supported by

substantial evidence, even if we might have reached a

contrary conclusion. This is particularly true in cases, such

as this, when the decision of the NLRB is grounded in large

part on credibility determinations of the ALJ who, after all,

heard the testimony and observed the demeanor o the

witnesses for the opposing parties — here including none

other than the employer’s President, Jack Heard, and the

eventually terminated employee, Kelvin Trotter.

The purportedly non-discriminatory reasons advanced

by Superior for the escalating series of adverse employment

actions it took against Trotter, culminating with his firing,

are (1) lying under oath during the initial hearing conducted

by the ALJ and in subsequent federal and state utterances, (2)

disobeying a direct command by a superior (here, Heard, the

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employer’s President) to report for work “on-time”

immediately following Trotter’s testimony at the initial

hearing, (3) insubordination in a confrontation with a

supervisor, Jose Castillo, and (4) possessing a “dirty” firearm

and a total number of cartridges in excess of the maximum

allowed. The ALJ concluded, and the NLRB agreed, based

on widely divergent positions and explanations advanced by

the parties, that the reasons given by Superior were

pretextual, that the disciplinary actions taken against Trotter

were grounded in anti-union animus, and that the adverse

employment actions in question would not have been taken

but for that animus. As we agree, we touch only briefly on

Superior’s proffered non-discriminatory reasons for its

actions.

First, Superior’s allegations that Trotter lied address

almost entirely statements he made at NLRB hearings and to

the State Unemployment authorities regarding his transfer by

Superior from Galveston to Houston well before

commencement of the organizing efforts here at issue. Other

than that, the allegations of mendacity address Trotter’s

reason for requesting time off on the morning of the initial

hearing. He told his immediate supervisor that he needed to

attend to a personal matter when, in fact, he was responding

to the subpoena for the initial hearing before the ALJ.

Superior’s claim that Trotter lied about not having

applied for a transfer boils down to a quibble over whether

he “applied” on several occasions to be transferred from

Galveston to Houston or merely informally “requested,” or

let his preference be known, that he would like to be

transferred to Houston. Not only was the issue whether he

had applied for a transfer wholly irrelevant to the purpose of

the hearing and Trotter’s testimony, Superior’s strident

efforts to classify Trotter’s response as lies under oath fail.

As the ALJ and Board observed, the question could easily

have been understood by Trotter as going to the matter of a

formal, written application for transfer (which he never did)

A-5

rather than to informal, oral requests that he be considered

for transfer.

As for the reason given by Trotter for requesting a

few hours of time off work on the morning of the hearing,

there was at least substantial evidence that “personal

business” or “personal matters” were explanations frequently

given by Trotter and other Superior employees to — and

deemed sufficient by — immediate supervisors. Nothing

indicates the necessity for an employee, even a court security

officer, to go into great detail about the reasons for wanting a

few hours off, particularly when, as here, going into greater

detail would risk adverse reaction to otherwise protected

activity.

Then there is the “charge” that Trotter disobeyed

Heard’s direct order to report on time, which is particularly

revealing of Superior’s animus. Even though Trotter’s

immediate superior, Office Johnson, confirmed that the only

thing he had told Trotter about reporting to work after time

off on the morning of the initial hearing was that Trotter

needed to report sufficiently ahead of his (Johnson’s) 4:00

p.m. court date, Superior has endeavored to manufacture a

reporting time of noon and then to make much over the time

_ elapsed between Trotter’s departure from the initial hearing

to change into uniform and report for duty, which he did by

approximately 1:30 p.m. What came through loud and clear

to the ALJ — then subsequently to the NLRB, and now to us

— is that Trotter’s surprise appearance and pro-union

testimony at the initial hearing touched off an immediate

reaction by Heard to squelch Trotter’s anti-union activities

and (likely) terminate his employment. By telephone, Heard

immediately set off a flurry of activity following the

adjournment of the hearing and well before Trotter could

possibly have made it back to his duty station, even if he had

not gone home to change into his uniform. By the time

Trotter reported, the Heard-initiated action had traveled

directly down the chain of command so that, when Trotter

A-6

arrived, Johnson refereed him to Castillo, where the

provocation discussed below commenced. We agree with the

ALJ and the NLRB that Heard’s admonition to Trotter as he

left the meeting not to be late for work — even if not the

tension-breaking jest that Trotter perceived it to be — cannot

be elevated to the level of a direct order of a remote superior

to be at his duty station by 12:00 noon.

We also conclude that there is substantial evidence

that the confrontation between Trotter and Castillo following

Trotter’s reporting to work, which encounter admittedly

escalated to “heated,” was orchestrated from higher up,

intentionally provoked by Castillo, and eventually used by

Superior as a pretext to mask its anti-union animus in taking

the adverse employment actions against Trotter. Castillo

twice made Trotter cool his heels for protracted periods while

waiting to be seen. The ALJ determined, based in large part

on credibility calls, that Castillo deliberately goaded Trotter

to the point of heated words and profanity, after intentionally

irritating him by making him wait; and that this was

deliberate incitement. We cannot say that the credibility

calls, factual testimony, and reasonable inferences drawn

from substantial evidence do not support this conclusion of

the ALJ and the NLRB under the applicable standard of

review.

The proffered weapons charge, i.e., that Trotter’s

sidearm was “dirty” when, on Castillo’s order, he turned it

over, and that he was in possession of an excess number of

rounds for that weapon, is neither consistent with nor

violative of the provision of the contract between Superior

and the General Services Administration (“GSA”) that

Superior cites in support of its rule-violation charge against

Trotter. Even assuming that the cleanliness of the handgun

was not up to the expected level of “spit and polish,” such a

first-time infraction would fall into the category of the most

minor of offenses, at most justifying an admonition to clean

it and keep it clean.

A-7

Turning to the question of the number of cartridges

that Trotter possessed, the applicable provision of the GSA

contract or Guard Manual cited by Superior states:

Each guard, entering on duty, including the uniform

onsite shift supervisor(s) shall be issued twelve (12)

rounds of 125 grain hollow point ammunition. Six

(6) rounds shall be used as a firearm load with six (6)

rounds carried in a cartridge case.

This is the sole basis of Superior’s claim that

Trotter’s possession of an excess six cartridges — 18 rather

than 12 — put Superior in violation of its contract with the

GSA. We agree with the ALJ and the Board that, under no

recognized method of contractual interpretation can this

language be construed to impose a limit on the maximum

number of cartridges that a guard my possess while on duty.

To the contrary, the plain wording of the provision is best

construed as a minimum ammunition requirement.

Regardless of the best interpretation, however, what the

insupportable charge against Trotter demonstrates beyond

cavil is that Superior was grasping at straws to manufacture

charges against Trotter as pretexts for the real basis of his

termination — his pro-union activity and Superior’s anti-union

animus, which stated at the top with Heard and promptly

proceeded all the way down the chain of command. This is

the conclusion of the NLRB based on the findings of the

ALJ; and we cannot say that this conclusion is unreasonable

or lacking in support from substantial evidence.

In conclusion, for essentially the same reasons as set

forth in the writings of the ALJ and the NLRB, we grant the

Board’s application for enforcement of the Order filed

October 23, 2003, and we order same enforced in full.

ENFORCEMENT ORDERED.

Superior Protection, Inc. and United Government

Security Officers of America, for and on behalf

of Local 229'. Cases 16—-CA-21399, 16—CA-

21495, and 16—RC-—10361

July 31, 2003

DECISION AND ORDER

BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA

On August 28, 2002, Administrative Law Judge Robert A.

Pulcini issued the attached decision and on September 25,

2002, an erratum to that decision. The Respondent filed

exceptions and a supporting brief. The General Counsel filed

an answering brief. The Respondent filed a reply brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record

in light of the exceptions and briefs’, affirms the judge’s

'In a limited exception, the Charging Party moves the

Board to amend its name in the caption. We grant the

exception and amend the name as requested.

The Respondent has requested oral argument. The

request is denied as the record, exceptions, and briefs

adequately present the issues and the positions of the parties.

We also deny the Respondent’s motion to reopen the case

and receive further evidence. Member Acosta joins his

colleagues in denying the Repsondent’s exception to the

judge’s ruling rejecting its attempt to introduce into

evidence the entire transcript, correspondence, and pleadings

from the preelection hearing in the representation case, rather

than just the portion of the transcript containing the

A-9

rulings, findings’, and conclusions‘, and adopts the

testimony of discriminatee Kelvin Trotter, whose testimony

in the present proceeding the Respondent seeks to discredit.

In the absence of newly discovered or previously

unavailable evidence or special circumstances, a respondent

is not entitled to relitigate issues that were or could have

been litigated in a prior representation proceeding.

Transportation Maintenance Services, 331 NLRB 1050

(2000). Member Acosta finds that the Respondent has

failed to explain how the admission of the remaining

transcript is appropriate or necessary because, as the judge

stated at fn. 2 of his decision, the judge admitted Trotter’s

previous testimony into evidence, and the remaining key

witnesses to matters in issue here—specifically Trotter’s

alleged status as a discriminatee discharged in violation of

Sec. 8(a)(3)}—appeared and testified subject to cross

examination in the present proceeding.

>The Respondent has excepted to some of the judge’s

credibility findings. The Board’s established policy is not to

overrule an administrative law judge’s credibility resolutions

unless the clear preponderance of all the relevant evidence

convinces us that they are incorrect. Standard Dry Wall

Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362

(3d Cir. 1951). We have carefully examined the record and

find no basis for reversing the findings. Some of the

Respondent’s exceptions imply that the judge’s rulings,

findings, and conclusions demonstrate bias and prejudice. On

careful examination of the judge’s decision and the entire

record, we are satisfied that the Respondent’s contentions are

without merit.

* In adopting the judge’s findings, we find it

unnecessary to draw an adverse inference from the

Respondent’s failure to call employees King and Murphy.

Even absent the adverse inference, the judge’s findings and

conclusions are well-founded in the record. In adopting the

judge’s finding that the Respondent violated Sec. 8(a)(3) and

A-10

recommended Order as modified’.

(1) when it imposed a 3-day suspension and 90-day

probationary period on Trotter, we reject the Respondent’s

characterization that Trotter was “loud, belligerent,

insubordinate, disrespectful, and profane” when Contract

Administrator Jose Castillo confronted him. Castillo used

this characterization to describe-Trotter’s actions, but the

judge did not credit this testimony. We agree with the judge

that the asserted basis for the Respondent’s decision to issue

the initial 1-day suspension to Trotter was pretextual and that

the Respondent could not in the circumstances of this case

rely on conduct it provoked as a basis for disciplining

Trotter. We adopt the judge’s conclusion that the

Respondent’s stated reason for Trotter’s discharge, which

was that he “lied” at the Board hearing, was also pretextual.

In doing so, however, we do not rely upon the judge’s

statement that the Board “construes testimony before it

‘liberally.”” (Emphasis added.) Rather, we note that the

Board interprets Sec. 8(a)(4), and not witness testimony,

liberally: “{I]t is clear that Section 8(a)(4) is to be construed

liberally . . . and that it protects even false testimony so long

as such testimony was not willingly and knowingly false and

uttered with intent to deceive.” Glover Bottled Gas Co., 275

NLRB 658, 673 (1985) (emphasis added)

*We modify the recommended Order to include a

remedial provision for the Respondent’s violation of Sec.

8(a)(4). Also, the judge included in his recommended remedy

a provision requiring the Respondent to reimburse Kelvin

Trotter for any extra Federal or State income tax that would

result from the lump sum payment of any backpay award.

Granting this request would involve a change in Board law.

See, e.g., Hendrickson Bros., 272 NLRB 438, 440 (1985),

enfd. 762 F.2d 990 (2d Cir. 1985). In light of this, we believe

that the appropriateness of this proposed remedy should be

resolved after a full briefing by the affected parties. See

Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1 (2000).

A-11

ORDER

The National Labor Relations Board adopts the

recommended Order of the administrative law judge as

modified below and orders that the Respondent, Superior

Protection, Inc., Houston, Texas, its officers, agents,

successors, and assigns, shall take the action set forth in the

Order as modified.

1. Substitute the following for paragraph 1(b) and reletter the

subsequent paragraph accordingly.

“(b) Disciplining, discharging, or otherwise discriminating

against any employee for supporting United Government

Security Officers of America and its Local #229 or any other

union.

“(c) Disciplining, discharging, or otherwise discriminating

against employees because they have given testimony under

the Act.”

2. Substitute the following for paragraph 2(b). “(b) Make

Kelvin Trotter whole for any loss of earnings and other

benefits suffered as a result of the discrimination against him

in the manner set forth in F. W. Woolworth Co., 90 NLRB

289 (1950), less any interim earnings, plus interest as

computed in New Horizons for the Retarded, 283 NLRB

1173 (1987).”

3. Substitute the attached notice for that of the administrative

law judge.

IT IS FURTHER ORDERED that the Regional Director for

Region 16 shall, within 14 days from the date of this Order,

open and count the ballot of Kelvin Trotter, and shall

prepare and serve on the parties a revised tally of ballots,

and issue the appropriate certification.

Because there has been no such briefing in this case, we

decline to include this additional relief in the Order here.